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April 26, 1995



As Corrected May 5, 1995. Released for Publication May 26, 1995.

The Honorable Justice Rizzi delivered the opinion of the court: Tully, J., and Cerda, J., concur.

The opinion of the court was delivered by: Rizzi

JUSTICE RIZZI delivered the opinion of the court:

After a jury trial, defendant, Willie Rushing, was convicted of two counts of possession of a controlled substance with intent to deliver. See Ill. Rev. Stat. 1985, ch. 56 1/2, pars. 1401(a)(2), (c). He was sentenced to 14 years imprisonment. Defendant now appeals, alleging the following errors: (1) the trial court's denial of his motion to suppress evidence; (2) the trial court's admission of hearsay evidence proffered by the state; (3) the trial court's refusal to instruct the jury on impeachment through prior inconsistent statements; (4) prosecutorial misconduct denying defendant a fair trial; (5) the trial court's imposition of two convictions for simultaneous possession of two controlled substances; and (6) the trial court's consideration that the defendant had probably sold drugs in the past when it imposed its sentence. We reverse the convictions and remand for a new trial.

Initially, we note that when reviewing a trial court's ruling on a motion to suppress, a reviewing court is not limited to the record at the hearing, but may properly consider all evidence adduced at trial. People v. Breeding (1991), 219 Ill. App. 3d 590, 579 N.E.2d 1128, 162 Ill. Dec. 314. Accordingly, the facts adduced at the hearing on the motion to suppress and at trial that relate to the search are as follows.

Defendant and his brother, David Austin (Austin), lived in the same apartment building. Defendant maintained an apartment on the second floor and Austin lived below him in an apartment on the first floor. On November 11, 1989, Austin called the police complaining that defendant had hit him and had threatened him with a gun. Chicago police officers, Edward Mizera and Wayne Gulliford, responded by going to the apartment building where defendant and Austin lived. Austin met them outside and repeated his claim that defendant had pulled a gun on him and had threatened to shoot him. He also told the police that defendant lived on the second floor.

The officers then proceeded to the second floor apartment and knocked on the door. Defendant's mother answered and allowed the officers to enter. Mizera asked defendant's mother if defendant was in the house. She told Mizera that defendant was in the bathroom. Mizera then knocked on the bathroom door and told defendant to come out. When defendant complied, Mizera patted him down and searched the bathroom for a gun. No gun was found.

By this time three other officers had arrived at the scene and were present in defendant's living room. Also in the living room were defendant, defendant's mother and defendant's father. Together, the officers looked around the apartment for the gun. Again, no gun was found.

Mizera then returned to Austin's apartment to ask him where the gun could be found. Austin responded by telling Mizera that defendant was a drug dealer and keeps all of his "dope" in a toolbox in his bedroom under his bed. Austin then speculated that the gun might also be in the toolbox, which was red. Hearing this, Mizera returned to the defendant's apartment and instructed Gulliford to look for a red toolbox under defendant's bed. Gulliford found the red toolbox under the bed and brought it to the dining room. The officers opened it. Mizera testified that he had no warrant, received no consent, but felt he had probable cause to search it. Inside the red toolbox the officers found quantities of cocaine, heroin, and $2,017 in cash. No gun was found. The police with defendant, who was now under arrest, left the apartment.

Once in the squad car, the police read defendant his Miranda warnings. Defendant said he wished to talk, and did so, telling the officers that he had people working for him on the streets but refused to tell them the source of the drugs.

Defendant moved before trial to have the cocaine, heroin and $2,017 suppressed on the basis that this evidence was obtained pursuant to a warrantless search, and that no exception to the warrant requirement was applicable. The trial court denied defendant's motion. The court did not state upon which exception to the warrant requirement it based its ruling. Defendant now appeals, arguing that the trial court's denial of his motion to suppress was error.

The Fourth Amendment of the United States Constitution reads:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be ...

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