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12/04/89 the People of the State of v. Agapito Sanchez

December 4, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

AGAPITO SANCHEZ, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

548 N.E.2d 513, 191 Ill. App. 3d 1099, 139 Ill. Dec. 128 1989.IL.1867

Appeal from the Circuit Court of Cook County; the Hon. James M. Schreier, Judge, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. MANNING, P.J., and O'CONNOR, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

The defendant, Agapito Sanchez, was charged by information with possession of a controlled substance with intent to deliver. The defendant moved to suppress the evidence seized, and the trial court sustained defendant's motion. The State appeals from the order granting defendant's motion to suppress.

On appeal, the State argues that the trial court erred in suppressing the State's evidence and ruling that the search was overly broad where the premises where the evidence was seized was next to and shared a common wall with the building for which the police officers had a valid search warrant and where the defendant had knocked part of the wall down to create a passageway between the two buildings.

At the hearing on the motion to suppress, Chicago police officer Jose Martinez testified that he was assigned to the gang crimes unit, and on February 23, 1986, he joined eight other police officers in executing a search warrant. The warrant authorized him to search a person and a building, specifically reciting "M/BH known as Pigwi 40 yrs. 5'6" 125 lbs Blk Hair Mustache & Beard and 4844 W. North Ave. (North Ave. Auto Repair) Chicago, Illinois, Cook County." Upon arriving at the premises, the officers forced the door open in order to gain entry. When they entered, Martinez noticed that the premises housed a large auto repair shop with numerous cars and two watch dogs. Martinez also noticed that there was a hole in the east wall of the building. After the dogs were restrained, the officers began their search. The officers found no contraband during their search of 4844 West North Avenue. Thereafter, the officers crawled through the hole in the wall into the adjacent premises at 4840 West North Avenue. The opening was about four feet high and three feet wide. The hole was used by the guard dogs to go from one building to another. Martinez further testified that inside the 4840 building he saw more cars and automobile parts as well as a boat. The officers returned to the building they had originally entered and obtained the keys for the cars and again went through the hole in the wall to continue their search. The officers searched the vehicles and found contraband inside the boat.

Chicago police officer Thomas Finnelly next testified. He stated that he had been told by an informant that the informant had gone to the North Avenue Repair Shop at 4844 West North Avenue in Chicago and bought a controlled substance from a person named Pigwi. Finnelly later went to 4844 West North Avenue and conducted a surveillance of the North Avenue Repair Shop. He did not pay any particular attention to the adjoining building. Based on the information provided by the informant and his surveillance, Finnelly obtained a warrant to search the premises. Finnelly further testified that during the course of the search of the adjoining building at 4840 West North Avenue, he went to the front door to see where it let out. The entranceway by the door was filled with automobile tires, rims and car seats. The officers discovered that the door had been boarded shut with two-by-four boards which had been nailed into the door and wall. Finnelly stated that he had no idea that he was entering 4840 West North Avenue when he crawled through the hole in the wall. If he had known that the 4840 building was attached to the 4844 building, he testified he would have added the address onto the search warrant.

The defendant testified that he bought the building at 4844 West North Avenue in 1981 and used it to conduct auto repairs. Approximately two years later, he purchased the 4840 West North Avenue building. The defendant testified that he used this building to store vehicles and it was not part of his repair shop, although he and his employees at various times used the hole in the wall between the buildings to get from one building to the other. Defendant stated that the second building had been marked as "4840" since the time he purchased it. The defendant further stated that he created the hole in the wall so that his two guard dogs could protect both buildings at night. The hole went through two separate but adjacent walls. He would only use this opening to go from building to building when it was absolutely necessary. Defendant testified that his employees frequently used the hole to go back and forth through the buildings, especially in the winter when it was cold outside.

Defendant further testified that the front door of the 4840 West North Avenue building was secured but not boarded up. He stated that a key could not be used to enter the front door of the 4840 building but noted that there was a rear entrance to the building which could be used. At the time that the search warrant was executed, defendant was storing a boat and about 12 cars, some of which he owned, in the 4840 building. Defendant stated that the keys for all the cars which were stored in the 4840 building were in the cars. He did keep keys for cars in the office of the building but the keys were only for the cars in the 4844 building.

Lillie Brooks testified that she was a postal carrier and that her route included the buildings at 4844 and 4840 West North Avenue. She stated that Rusnok Tool Works had been located at 4840 West North Avenue and the building was marked with a sign labeling it as such but Rusnok Tool Works had moved out.

Willie Taylor testified that he was a former employee at the auto body repair shop at 4844 West North Avenue. He stated that after the defendant purchased the building at 4840 West North Avenue, the defendant used it to store cars, but the building was not used to conduct auto repairs. Taylor said he was in charge of bringing cars to and from the storage building to the repair shop. He also checked on the building at 4840 West North Avenue two or three times a week to make sure there were no break-ins. The defendant had told him and three other employees to put the hole in the wall in order for the watch dogs to go through and check the other building.

The State argues on appeal that the trial court erred in suppressing the State's evidence because it had been obtained by an overbroad search. The State contends that since the premises where the evidence was seized was immediately next to, and shared a common wall with, the building for which the officers had a valid search warrant and where the defendant had created a passageway between ...


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