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02/08/96 PEOPLE STATE ILLINOIS v. EUGENE BROWN AND

February 8, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
EUGENE BROWN AND TRACY COOPER, DEFENDANTS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE STANLEY SACKS and JOHN MADDEN, JUDGES PRESIDING.

As Corrected March 13, 1996. As Corrected May 7, 1996.

Presiding Justice Hoffman delivered the opinion of the court: Cahill and S. O'brien, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The defendants, Eugene Brown and Tracy Cooper, were charged by indictment with numerous counts of possession of controlled substances with intent to deliver, criminal fortification of a residence, and armed violence. Prior to trial, the court denied motions by both defendants to suppress evidence recovered in a search of Cooper's apartment. The defendants proceeded to a joint jury trial after which Brown was found guilty on the fortification, possession, and armed violence charges, while Cooper was found guilty of possession and fortification. Their appeals were consolidated, and both now challenge the denial of their suppression motions and the sufficiency of the evidence supporting their convictions.

Prior to trial, the defendants moved to suppress evidence of weapons, currency, and drugs seized in a warrantless search of Cooper's apartment. At the joint suppression hearing, Officer Kevin Friedrich testified that on April 2, 1991, at about 10:30 p.m., he and Officer Michael Landando were conducting narcotics surveillance at an apartment building at 2928 West Warren in Chicago. While in the process of making an unrelated arrest on the first floor, the officers heard gunshots coming from the rear of the building and proceeded in that direction. Friedrich testified that when they arrived, they saw Brown on the second floor porch with a gun in his hands. The officers pursued Brown but he was able to evade them by fleeing into the second-floor apartment, shown to belong to Cooper. Friedrich testified that when the officers reached the apartment door they heard movement inside and attempted to gain entry. They were unable to do so, however, because the door was fortified with heavy steel and burglar bars. The officers summoned an additional eight to ten officers who arrived on the scene. On the advice of their sergeant, Friedrich and Landando then attempted to procure a search warrant for the premises while the remaining officers remained at the building, securing both the front and rear doors.

Friedrich and Landando were gone from the premises nearly three hours, from about 11:30 p.m. until 2:30 a.m., and spent most of this time attempting unsuccessfully to locate a judge to execute a search warrant. Friedrich testified that they subsequently returned to the scene and knocked on the front and rear doors, announcing their office. Hearing movement inside but receiving no response, the officers then entered the front door using a battering ram.

Friedrich indicated that upon entry, he saw two females and two males sleeping on a bed in the front bedroom. These individuals were taken into custody but were ultimately released uncharged. Friedrich then heard movement over the rear bedroom, and after proceeding to that area, discovered a small square entrance in the ceiling leading to an attic crawl space. Friedrich saw an individual in the crawl space and ordered him to come down, and when he did so, Friedrich recognized him as Brown, the man he had seen holding the gun. Friedrich searched Brown but found neither weapons nor contraband. After the officers restrained Brown in handcuffs, Friedrich proceeded into the attic crawl space and searched it, uncovering firearms and cocaine. Friedrich admitted that the cocaine was contained in brown plastic shopping bags through which it was not possible to see. He also admitted that once Brown had descended from the crawl space he was no longer able to reach or control anything in that area.

Friedrich and Landando next went into the kitchen where they discovered a steel safe weighing about 100 to 150 pounds behind a microwave oven cart. Looking through two quarter-sized holes in the bottom of the safe, Landando was able to see that it contained wrapped packages and currency. The officers brought the safe to the fire department where it was pried opened and found to contain additional drugs, cash, and a photographic identification card belonging to Cooper.

Cooper testified that she lived in the second-floor apartment; however, it was undisputed that she was not home on the day of the search. Cooper indicated that Brown had been in her apartment since about noon that day because she had asked him to look after it. She admitted that the guns, drugs and money recovered from the search belonged to her.

At trial, Friedrich testified that when they first saw Brown he was standing on the second-floor porch with a gun pointed upward into the air. Friedrich testified that the officers were unable to enter the building through the rear or front doors because both were fortified with heavy steel and also with padlocked iron burglar bars that extended across the front of the doors. The officers later succeeded in opening one of the doors by pounding it 50 to 60 times with a battering ram. Testimony by a surveillance officer established that during the period Friedrich and Landando were out trying to obtain a warrant, no one attempted to leave or enter the second floor apartment.

Friedrich testified that after arresting Brown, he stood on a chair, climbed partially into the crawl space, and looked around. About five feet from the opening, Friedrich saw what he believed to be the barrel of a rifle, and asked one of the officers to strike the ceiling with the battering ram so he could be certain. When the officer did this, Friedrich saw the stock of the rifle and a couple of handguns "jump" into the air. Friedrich descended to the ground, and the officers continued striking the ceiling, creating a hole and causing some ammunition to fall through to the floor. They eventually created a hole large enough for several officers to enter and search the crawl space.

The evidence established that inside the crawl space, police recovered 11 guns, ammunition, and near where the weapons had been, about 73 packets of cocaine. From the safe, police recovered several clear plastic bags of cocaine, heroin, and codeine, a wrapped "brick" consisting of a kilogram of nearly pure cocaine, an ankle holster, $5,600 dollars in cash, and a college picture identification and recent billing statement both belonging to defendant Cooper. Evidence of utility and gas company records established that the apartment was leased to Cooper during the time period in question.

Friedrich testified that when he saw Brown in the crawl space, he was not touching or in possession of the bags. Friedrich did not see the bags of drugs until entering the crawl space with the other officers. Friedrich admitted that police never conducted tests to determine whether Brown's or Cooper's fingerprints were on the bags, or whether the ...


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