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02/25/94 PEOPLE STATE ILLINOIS v. WILLIAM PEREZ

February 25, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
WILLIAM PEREZ, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kane County. No. 91-CF-840. Honorable Barry E. Puklin, Judge, Presiding.

McLAREN, Inglis, Geiger

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The State appeals pursuant to Supreme Court Rule 604(a)(1)(134 Ill. 2d R. 604(a)(1)) from an order of the circuit court of Kane County granting the motion of the defendant, William Perez, to suppress evidence. The State argues on appeal that the cocaine removed from defendant's pants pocket after a pat-down search inevitably would have been discovered during a subsequent search incident to arrest. We affirm in part, reverse in part, and remand.

The State charged the defendant by indictment with the unlawful possession of more than 15 but less than 100 grams of a substance containing cocaine with the intent to deliver (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(a)(2)(A) (now 720 ILCS 570/401(a)(2)(A) (West 1992))), the unlawful possession of less than 15 grams of a substance containing cocaine with the intent to deliver (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(c)(2)(now 720 ILCS 570/401(c)(2) (West 1992))), the unlawful possession of more than 15 but less than 100 grams of a substance containing cocaine (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1402(a)(2)(A) (now 720 ILCS 570/402(a)(2)(A) (West 1992))), and unlawful possession of a controlled substance without a controlled substance tax stamp (Ill. Rev. Stat. 1991, ch. 120, par. 2160 (now 35 ILCS 520/10 (West 1992))). The defendant filed a motion to quash arrest and suppress all evidence discovered during a search of the residence in which he was arrested.

At the suppression hearing, the defendant testified that, on June 4, 1991, he resided at 1306 Solfisburg in Aurora. He had been living there for two months. On the evening of June 4, the defendant went to his mother's home at 230 North Sumner Street to pick up some clothes that he had left there. The defendant's brother, Raymond Perez, was present when the defendant arrived but left shortly thereafter.

The defendant testified that he was about to enter a bedroom to get his clothes when he heard somebody force open the door to the house. Several police officers entered the house and asked the defendant if he was Raymond Perez. The defendant told the officers he was not Raymond, and the officers told the defendant they were looking for his brother. The officers pulled their weapons, searched the defendant, found cocaine, and continued searching the apartment. The officers asked the defendant where the other "stuff" was, and the defendant stated that he did not know anything. The officers also found cocaine inside of a panel in a bedroom wall. The officers then arrested the defendant. The defendant also testified that his middle name is Frank and that he is commonly known as Frankie Perez.

Pamela Page testified that she is the defendant's girlfriend. On June 4, 1991, she lived at 1306 Solfisburg with her mother, her two brothers, and the defendant. At that time, defendant had been living there for about two months.

Victor Fields, a deputy with the Kane County sheriff's department and a member of the North Central Narcotics Task Force (Task Force), testified on behalf of the State. Fields testified that he obtained a warrant to search the residence at 230 North Sumner. The basis for the warrant was a controlled purchase that took place at that residence. According to Fields, an informant that was working for him purchased cocaine from the defendant.

Fields testified that he executed the warrant on June 4, 1991, with other officers of the Task Force. Fields testified that the officers had previously received information that they would not be able to enter the residence through the front door because it was blocked by furniture. The rear door was locked. The officers entered through the rear door and encountered the defendant. Fields entered behind three or four other officers. By the time he reached the southeast bedroom located in the basement, another officer had found a plastic bag that was hidden in a recess in the bedroom wall. This bag contained a substance later identified as cocaine. Fields testified that the officers found the bag within 30 seconds after entering the home. He did not see the officers remove the bag from the wall recess.

At the time the officers found the bag, the defendant had his hands spread against a wall at the foot of the basement steps, about 8 to 10 feet from where the cocaine was hidden. Fields saw Gerald McCabe, the officer who secured the defendant, remove from the defendant's pants pocket a plastic bag containing a substance later identified as cocaine. The defendant was then placed under arrest. Fields testified that McCabe removed the plastic bag from the defendant's pocket after the other officers found the plastic bag in the wall recess. Fields also testified that the officers had not yet ascertained the defendant's identity at the time McCabe searched him.

Sergeant McCabe of the Aurora police department testified that, upon entering the residence, he proceeded directly to the basement. McCabe saw the defendant and placed him against the wall while the other officers searched the bedroom which the defendant had just exited. McCabe had the defendant place his hands against the wall and spread his legs and then conducted a pat-down search of the defendant. McCabe testified that his purpose in doing this was to secure the area, prevent the defendant from interfering with the search, and determine if the defendant was carrying weapons. McCabe felt a soft "package-type" item in the defendant's pocket and suspected it might contain drugs. He removed the package, which was the plastic bag containing cocaine. McCabe then placed the defendant under arrest. According to McCabe, the other officers discovered the cocaine in the wall "at the same time or just previous to" his search of defendant.

The trial court denied the defendant's motion with respect to the cocaine found in the wall recess because that evidence was obtained as a result of a proper search of the residence pursuant to a search warrant. The trial court granted the defendant's motion to suppress the cocaine that McCabe removed from the defendant's pocket, concluding that the search of the defendant was not authorized under section 108-9 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 108-9 (now 725 ILCS 5/108-9 (West 1992))).

The State moved for reconsideration of the trial court's ruling regarding the cocaine seized from the defendant's pocket. At the hearing on this motion, the State argued for the admission of the cocaine under the inevitable discovery doctrine. The court concluded that the State failed to meet its burden of demonstrating the evidence inevitably would have been discovered ...


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