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10/27/89 the People of the State of v. Alfredo Castro

October 27, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ALFREDO CASTRO, DEFENDANT-APPELLANT



Before his trial, the defendant filed a motion to suppress the evidence seized pursuant to the search warrant. In his motion, the defendant alleged that: Garza had no reason to believe his informant had ever been inside the defendant's apartment because Garza made no effort to determine the truth of the informant's claim; without Garza's "misleading" affidavit, the search warrant would not have been issued; the warrant failed to state facts sufficient to show probable cause, failed to describe with particularity the person or premises to be searched, and failed to adequately state why a warrant should issue; Garza's affidavit was based upon uncorroborated hearsay; and Garza's affidavit contained allegations that were deliberate falsehoods or were made with a reckless disregard for the truth, and those false statements were necessary to a finding of probable cause to search.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION

546 N.E.2d 662, 190 Ill. App. 3d 227, 137 Ill. Dec. 717 1989.IL.1705

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

APPELLATE Judges:

JUSTICE QUINLAN delivered the opinion of the court. EGAN, P.J., and McNAMARA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

The defendant, Alfredo Castro, was charged with possession of more than 30 grams of a substance containing cocaine with intent to deliver and was convicted of that offense in the circuit court of Cook County. The trial court denied defendant's motion for a new trial and sentenced him to six years in the Illinois Department of Corrections. Defendant now appeals his conviction to this court.

On September 20, 1985, Chicago police officer Frank Garza executed a complaint for a search warrant based on an informant's tip. Garza requested a search warrant for a male Latin named Alfredo who was approximately 30 years old, 5 feet 3 inches tall, 140 pounds, with brown eyes, a beard and a light complexion. Garza also specified that he wanted to search for cocaine and any controlled substances, as well as any items or documents showing proof of residence. Garza said that he had probable cause that the items would be found as stated based on a conversation with a reliable informant. Garza had known the informant for approximately three years and, in the past 18 months, the informant had given Garza information on three separate occasions which had resulted in three separate narcotics raids. Each raid had culminated in arrests and had yielded a substance that tested positively for cocaine.

Relevant to this case, the informant told Garza that he met with Alfredo on September 19, 1985, at Alfredo's first-floor apartment located at 2915 W. Belden in Chicago, in order to purchase cocaine. Alfredo offered to sell the informant a quarter ounce of cocaine for $425, but the informant asked to sample the cocaine first. The informant told Garza that Alfredo then went to the back of his apartment and returned with a clear plastic bag containing what the informant estimated to be an ounce of cocaine. Next, Alfredo took a small amount of white powder out of the bag and gave it to the informant, who then told Alfredo that he would take it home to try it and, if he was satisfied with its quality, he would return for more. The informant told Garza that he tried the powder and, based on his frequent cocaine use in the past five years, he determined that the substance was cocaine. The informant also told Garza that he believed Alfredo was still in possession of at least one ounce of cocaine.

Based on Garza's affidavit, the circuit court issued a search warrant for Alfredo and for Alfredo's first-floor apartment at 2915 W. Belden in Chicago. Four Chicago police officers proceeded to 2915 W. Belden with the warrant. The officers searched the premises and discovered cocaine. When the officers discovered the cocaine, they arrested the defendant, Alfredo Castro.

Defendant also submitted three affidavits in support of his claim that Garza's affidavit contained falsehoods. Defendant submitted his own affidavit, which stated that he worked from early morning until late afternoon on September 19, 1985, at St. Joseph's Paper Company, where he had been employed for 13 years. Defendant said that when he returned home on that day, his wife and her family were already home. Defendant claimed that he ate supper, watched television and went to bed. During the time he was home, defendant said, no one came to his home, and, more specifically, no one came to his home to purchase controlled substances.

Carmen Castro, defendant's wife, also submitted an affidavit in this case. She said that she resided with the defendant at 2915 W. Belden on September 19, 1985. Carmen claimed that she was home throughout the day on September 19 and that the defendant was at work from the early morning until the late afternoon. When the defendant returned home, Carmen said, he ate dinner, watched television and went to bed. Carmen stated that the defendant never left the house once he arrived home from work, and he did not receive any visitors or sell any controlled substances that day.

The third affidavit that defendant submitted was that of his stepson, Luis Munoz. Luis said that he was Carmen's son and on September 19, 1985, he lived with Carmen and the defendant at 2915 W. Belden. Luis stated that in the late morning or early afternoon of September 19, a man came to the back door of the apartment and asked Luis if he "had anything." When Luis asked the man what he wanted, the man asked if Alfredo was home. Luis said the man left when Luis told him that Alfredo was not home. Luis stated that he did not give the man anything, nor did anyone in Luis' presence give the man anything. Finally, Luis said that he was 25 years old, 5 feet 8 inches tall, 170 pounds, with brown eyes and a light complexion. Luis also said that he occasionally wore a beard.

The trial court denied defendant's motion to suppress and the case proceeded to jury trial. Officers Fernando Correa and Frank Garza both testified for the State. Their testimony was essentially the same and was as follows. Around 4:30 p.m. on September 20, 1985, the officers went to 2915 W. Belden with a search warrant and knocked on the door to the first-floor apartment. A young man answered the door, who the officers later determined was Luis Munoz. When the officers asked if Alfredo was home, Luis said "yes" and walked away. Another man then appeared and said he was Alfredo. The officers showed the defendant their search warrant ...


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