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03/09/89 the People of the State of v. Stephen Sawczenko

March 9, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

STEPHEN SAWCZENKO, DEFENDANT-APPELLANT

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY; THE HON. ROBERT

v.

BOHARIC, JUDGE, PRESIDING. APPELLATE JUDGES:



Before trial, defendant filed a motion to suppress evidence seized at 1334 N. Kildare Avenue in Chicago on September 20, 1985. Defendant argued that the search violated his fourth amendment rights because, while it was conducted pursuant to defendant's arrest, the arrest was a pretext for the search. At the hearing on the motion, two police officers who were involved with the arrest testified, Detective James Baraniak (Baraniak) and Detective Richard Heinrich (Heinrich). Baraniak testified that he, Heinrich, Detective Silich (Silich) and Detective Perrington were investigating defendant in connection with an August 1985 residential burglary at 6201 N. Kilpatrick. Pursuant to that investigation an arrest warrant for defendant was issued on September 5. Attempts to arrest defendant at his last known address were unsuccessful because they were unable to locate him at that address. Baraniak testified that between September 17 and September 20 he and the other three detectives, whose names were also on the arrest warrant, saw defendant approximately 10 times, but they were unable to arrest defendant on any of those occasions because, in each instance, he was seen in a moving vehicle which they tried to follow but which they lost in traffic each time.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

535 N.E.2d 1105, 180 Ill. App. 3d 406, 129 Ill. Dec. 340 1989.IL.304

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Following a jury trial, defendant, Stephen Sawczenko, was convicted of residential burglary and sentenced to 12 years in the Illinois Department of Corrections. Defendant raises three issues on appeal: (1) whether the trial court erred when it denied his motion to suppress evidence; (2) whether comments made by the State during its closing argument were prejudicial so as to deny him a fair trial; and (3) whether the trial court abused its discretion in sentencing him to 12 years' imprisonment. We affirm.

On the morning of September 20, the detectives received an anonymous telephone call informing them that defendant's car was parked at 1334 N. Kildare. The detectives drove to that location and staked out defendant's car from about 9 a.m. until 1 p.m. When they saw a child on the street and they asked him if he knew if defendant lived in the area, the child pointed out the apartment where defendant's father lived. Baraniak testified that he and Heinrich went to the back entrance of the building and Silich and Perrington went to the front. When he and Heinrich arrived at the back door of the apartment, he looked through a hole in the door and he observed defendant, in his underwear, come out of the bedroom, walk to the living room window, look out and then return to the bedroom. At the same time, Silich was knocking on the front door and ringing the bell to the apartment. Baraniak knocked on the back door several times, identified himself and informed defendant that he had a warrant for defendant's arrest. When defendant refused to open the door, Baraniak took a hammer that he found lying on the back porch and broke the lock on the door. The door led to the kitchen and the bedroom was off of the kitchen. When Baraniak entered the apartment, he saw defendant standing in the kitchen near the door leading to the bedroom. The door was open. Defendant was placed under arrest. Baraniak testified that while standing in the kitchen, he saw a gun under the bed in the bedroom, but that he thought that Heinrich saw the gun first and then pointed it out to him. Because defendant wanted to put clothes on, the detectives accompanied him to the bedroom, where they saw a duffel bag with an "Eddie Bauer" label that met the description of one of the items that had been taken during the burglary. At this point we note that the trial transcript revealed a different explanation of the circumstances leading to the seizure of the duffel bag during defendant's arrest. At trial, Baraniak testified that he first saw the duffel bag when he was arresting defendant. He stated that defendant was standing in the kitchen near an open door that led to a bedroom. When Baraniak looked through the open doorway, he saw the Eddie Bauer bag. He then testified that the detectives entered the bedroom to get clothes for defendant and at that point the evidence was seized.

Detective Heinrich provided similar testimony. He testified that he participated in the investigation of defendant in connection with a residential burglary and that he was involved in the issuance of the arrest warrant and subsequent arrest of defendant. Heinrich stated that a few days prior to defendant's arrest he saw defendant in a vehicle on a highway, but because defendant was traveling in an opposite direction, Heinrich was unable to make an arrest. He also testified that on September 20 an anonymous caller notified police that defendant's father and sister shared a rear apartment at 1334 North Kildare, and that the detectives would find defendant's car parked at that location. The detectives drove to that address and staked out defendant's car for several hours, after which time they decided to go to the apartment. Heinrich testified that he accompanied Detective Jim Bryant to the back entrance to the apartment. They knocked on the door several times, announcing that they were police officers with a warrant for his arrest. When defendant refused to open the door, the detectives found a hammer and used it to break the door, which led to the kitchen. After defendant was placed under arrest, the detectives accompanied defendant to the bedroom so that he could get dressed. Heinrich stated that he believed that the door to the bedroom was open. He also testified that he thought that a gun was found while they were all in the bedroom, but he could not recall who found the gun.

In denying defendant's motion the court commented that it believed Baraniak's testimony, that defendant's arrest was based on a warrant, that at the time the evidence was observed by the detectives the detectives were in a place they had a right to be, and that the arrest was not a pretext for a search of the apartment.

Our review of the trial court's decision to deny defendant's motion to suppress recognizes that its ruling will not be set aside unless clearly erroneous. (People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 677; People v. Brink (1988), 174 Ill. App. 3d 804, 529 N.E.2d 1.) Defendant argues that the arrest was a subterfuge to gain access to the apartment for the dominate purpose of conducting a search for evidence. To prevail on a motion to suppress based on a subterfuge theory, defendant must prove that the motive of the police in arresting defendant at a particular place was to find evidence. (See 2 W. LaFave, Search & Seizure § 6.7(d) at 728 (2d ed. 1987).) In support of this argument, defendant points to the delay from the time the arrest warrant was issued on September 5 to defendant's subsequent arrest on September 20 and to the fact that the detectives admitted having seen defendant on several occasions during that period of time and yet never attempted to arrest defendant. The trial court considered this argument and determined that the arrest was not a pretext to gain access to the apartment to conduct a search.

After a review of the record, we cannot say that the trial court's determination was manifestly erroneous. The circumstances of the delay and the failure to arrest defendant during any of the numerous times that the detectives saw defendant were sufficiently explained at the suppression hearing by the testimony of Baraniak and Heinrich. Baraniak testified that although he saw defendant on approximately 10 occasions from September 17 to September 20, on each occasion defendant was sighted in a moving vehicle and lost in traffic during attempts to follow defendant's vehicle. He also stated that they made several attempts to arrest defendant at his last known address, but that they were never able to find him there. Moreover, we note that prior to going to the apartment, the detectives staked out defendant's car for several hours. This conduct does not support defendant's subterfuge theory. It would seem that the detectives' intent was to arrest defendant when he returned to his car. Also, it is not clear that the detectives knew exactly what apartment defendant was in when they staked out his car. Testimony on this matter is contradictory. Baraniak testified that when they drove to 1334 N. Kildare they had been informed only that defendant's car was at that location. He indicated that it was not until several hours after their arrival that the detectives learned from a child on the street that defendant's father lived in an apartment at that address. Heinrich testified that the unidentified person who called the detectives on the morning of the arrest to inform them of the location of defendant's car also told them that defendant's sister and father had an apartment at 1334 N. Kildare. In any event, the detectives' conduct supports a finding that when they went to 1334 N. Kildare they did so for the purpose of watching defendant and with the intent of arresting defendant at his car when he returned to it.

Moreover, Baraniak testified that they attempted to arrest defendant at his last known address, but were unable to locate him there. Further, the testimony of Baraniak and Heinrich, though contradictory concerning when they learned of the location of defendant's father's apartment, was consistent to the extent that at the time they went to 1334 N. Kildare they did not know that defendant had been staying at that location. Therefore, they would have no expectation that if they arrested defendant at that apartment, they would find evidence of the crime.

For these reasons we reject defendant's argument that his arrest was a pretext for an illegal search of the apartment. Further, not only is the legality of the seizure sustained as being pursuant to a legal arrest, but it was also proper under the plain view doctrine. A police officer may lawfully seize an item in plain view without a warrant if he views the object from a place where he has a right to be and if the facts and circumstances known to him at the time he acts give rise to a reasonable belief that the item seized constitutes evidence of criminal activity. (People v. Singer (1987), 156 Ill. App. 3d 470, 474-75, 509 N.E.2d 758; People v. Loggins (1985), 134 Ill. App. 3d 684, 480 N.E.2d 1293.) Under the plain view doctrine, evidence seized by officers in the absence of a warrant is nevertheless admissible if three conditions are met. "First, police must be properly on the premises through a warrant or an exception to the warrant requirement. Second, the police must discover the evidence inadvertently, not knowing in advance the location of the evidence. Finally, it must be immediately apparent that the items observed may be evidence of a crime, contraband, or otherwise subject to seizure." (People v. Brink, 174 Ill. App. 3d at 808, citing Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022.) In addition, probable cause to search the area must exist in order to invoke the plain view doctrine. (Arizona v. Hicks (1987), 480 U.S. 321, 94 L. Ed. 2d 347, 107 S. Ct. 1149; People v. Brink, 174 Ill. App. 3d 804, 529 N.E.2d 1.) Probable cause for a search exists where the circumstances are such that "'there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" People v. Brink, 174 Ill. App. 3d at 810, quoting Illinois v. Gates (1983), 462 U.S. 213, 238, 76 L. Ed. 2d 527, 548, 103 S. Ct. 2317, 2332.

Applying these principles to the instant case, we find that the circumstances support a Conclusion that the seizure was a proper application of the plain view doctrine. First, the detectives were properly on the premises pursuant to a valid arrest warrant. Second, the detectives discovered the evidence inadvertently. While Baraniak's testimony at trial differed somewhat from his testimony at the suppression hearing, either explanation of the circumstances concerning the manner in which he first discovered the evidence indicates that his discovery was inadvertent. Third, it was immediately apparent that the duffel bag that the detectives saw in the bedroom met the description given by the victim of the duffel bag taken in the burglary. Finally, for this same reason, we conclude that the detectives had probable cause to believe that the items they saw in the bedroom were the items that had been taken during the burglary.

On the basis of the record before us, we conclude that the arrest of defendant was not a pretext to conduct a search of the apartment and that the warrantless seizure of the evidence was proper pursuant to the plain view doctrine. Therefore, the trial ...


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