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12/31/96 PEOPLE STATE ILLINOIS v. ROBERT WALENSKY

December 31, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ROBERT WALENSKY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Dennis J. Porter, Judge Presiding.

As Corrected January 14, 1997. Released for Publication February 13, 1997.

The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr., P.j., and McNULTY, J., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

The defendant, Robert Walensky, was charged by indictment with permitting an unlawful use of a building in violation of paragraph 406.1 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1406.1, now at 720 ILCS 570/406.1 (West 1994)), and with possession of a controlled substance with intent to deliver in violation of paragraph 401(a)(2)(B) of the Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1401(a)(2)(B), now at 720 ILCS 570/401(a)(2)(B) (West 1994)). After a bench trial, defendant was convicted on the amended charge of possession of controlled substance with intent to deliver under paragraph 1401(a)(2)(A) of the Controlled Substances Act. Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1401(a)(2)(A), now at 720 ILCS 570/401(a)(2)(A) (West 1994). *fn1 Before the matter could proceed to sentencing, defendant filed a motion for a new trial, which the trial court denied. The trial court then sentenced defendant to a term of six years imprisonment. Defendant appeals his conviction, urging reversal based upon certain alleged pre-trial errors and upon the alleged insufficiency of the evidence.

FACTS--Pre-Trial Proceedings:

On February 1, 1993, defendant filed a motion entitled motion to quash search warrant and suppress evidence. The search warrant referred to in the motion named the defendant personally and the basement apartment located at 3617 West 61st Place, Chicago, Illinois as the subjects of the search. The warrant provided for the seizure from the defendant of one .38 caliber semi-automatic pistol, identification and proof of his residency, and any other evidence related to the offense of felony unlawful use of weapons. The sworn complaint for the search warrant was completed by Chicago Police Officer Robert O'Neill. In it, Officer O'Neill stated that a confidential informant told him that the defendant was involved in weapons trafficking; that the defendant had offered to sell him weapons and cocaine; and that the defendant had told him that he kept the weapons at his place of residence. The complaint for search warrant also stated that the police therefore initiated a surveillance of the defendant, during which they saw defendant traveling between his place of business late at night and his alleged residence, West 61st Place. According to the complaint, the informant also allegedly told O'Neill that he regularly saw the defendant put a .38 caliber semi-automatic pistol in his coat pocket before leaving work for home, and that he had seen the defendant do so at 9:50 p.m. on November 12, 1992, before the defendant left for home. The complaint further stated that defendant's car was seen at 3617 West 61st Place at 7:00 a.m. on the following morning. Lastly, it recited that the defendant was a known weapons and narcotics dealer, and detailed several of defendant's felony convictions, which included burglary, robbery, and aggravated assault.

The defendant's motion sought to suppress evidence seized pursuant to the search warrant from 3617 West 61st Place and from defendant's person. The motion also sought to suppress evidence seized in another search which was not covered by any search warrant, involving a restaurant and bar called Alfredo's, purportedly owned by defendant and located at 7138 South Western Avenue, Chicago, Illinois.

On June 29, 1993, a hearing was scheduled on defendant's entire motion to quash and suppress, but because of the absence of the police officers who executed the search warrant, the parties agreed to proceed on a limited basis to address only the legal sufficiency of the search warrant and the sworn complaint in support of its issuance. Pursuant to the June 29 hearing, the trial court held that the credibility of the informant identified in the complaint was not sufficiently established to support a finding of probable cause. In so holding, the trial court stated as follows:

"So what this boils down to is we have a person saying the defendant committed the offense of possession of a weapon, and then a showing that he is a felon. And I consider the fact he is carrying a weapon on his person *** [to rest] entirely on this informant and no one's knowledge ***. I don't think anything established his credibility. I would say he might have a stop for articuble [sic] suspicion maybe. It is not probable cause. Way short of probable cause."

Accordingly, the trial Court suppressed the evidence seized pursuant to the warrant from the defendant's person and from the apartment at 3617 West 61st Place. The court then postponed the remainder of defendant's motion to quash and suppress, relating to evidence seized during the search of Alfredo's, for an evidentiary hearing on another date.

More than two months later, on September 7, 1993, before the remaining issues under defendant's motion to quash and suppress were heard, the State filed a motion to reconsider the trial court's June 29, 1993 order quashing the search warrant and suppressing the evidence seized pursuant thereto. At a hearing on March 16, 1994, the defendant objected to the trial court's reconsideration of its June 29 order, because that motion was filed more than 30 days after the entry of that order. This objection was overruled.

The parties then proceeded to the merits of the State's motion to reconsider. In that motion, the State urged the trial court to reconsider its June 29 order excluding evidence seized pursuant to the search warrant, on the grounds that the officers who obtained and executed the warrant relied upon it in good faith. The State urged that the "good faith" rule enacted pursuant to the decision of the United States Supreme Court in United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984) applied and that the seized evidence need not be excluded. In that regard, the parties then stipulated that Chicago Police Officer Robert O'Neill, who obtained the search warrant, would testify to the steps taken in obtaining the warrant, which included procuring a review of the warrant by an assistant State's attorney on felony review, as well as the approval of a circuit judge who reviewed the warrant in Officer O'Neill's presence.

At the close of the March 16, 1994 hearing, defendant asked the trial court for an evidentiary hearing to introduce evidence to negate the State's "good faith" argument. In support, defendant's counsel purported to make an oral offer of proof, in which he alleged the following: (1) that although the informant said defendant always carried a gun, defendant did not have a gun on his person when he was searched; and (2) that the police officers who obtained and executed the search warrant in the instant case had conducted two prior warrantless searches of the defendant, during which the officers seized evidence later suppressed by judges other than the judge in the instant case.

The trial court responded that it would permit defendant to introduce evidence to negate the State's "good faith" contentions, but only if defendant would file a written motion by March 31, 1994, supported by affidavits, showing reckless disregard for the truth on the part of the officers who executed the search warrant, or that the judge who signed the search warrant was misled by the information of the affiant officer. The defendant thereafter filed a written motion on April 21, 1994 which sought an evidentiary hearing regarding the State's "good faith" argument. That motion was submitted without supporting affidavits, and re-argued the untimeliness of the State's motion to reconsider, reiterated the grounds for the proposed evidentiary hearing set forth in defendant's earlier offer of proof, and provided some details of the previous warrantless searches alluded to therein.

The trial court continued the case until May 25, 1994, for argument on all motions filed prior to that date. At the May 25 hearing, the trial court denied defendant's motion for evidentiary hearing and granted the State's motion to reconsider pursuant to the "good faith" doctrine. The trial court then addressed the remaining allegations in defendant's motion to quash and suppress relating to the evidence seized during the warrant less search of Alfredo's. In that regard, the court heard the testimony of the defendant ...


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