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05/13/97 PEOPLE STATE ILLINOIS v. ALBERTO FAVELA

May 13, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ALBERTO FAVELA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois. No. 96--CF--79. Honorable John D. O'Shea, Judge Presiding.

Released for Publication June 19, 1997.

Present - Honorable Michael P. McCUSKEY, Justice, Honorable William E. Holdridge, Justice, Honorable Thomas J. Homer, Justice. Justice Homer delivered the opinion of the court. McCUSKEY and Holdridge, JJ., concurring.

The opinion of the court was delivered by: Homer

JUSTICE HOMER delivered the opinion of the court:

Following a jury trial, the defendant, Alberto Favela, was convicted of possession with intent to deliver more than 5,000 grams of cannabis (720 ILCS 550/5(g) (West Supp. 1995)). He was sentenced to a 14-year term of imprisonment. The defendant appeals, contending that: (1) the warrant issued to search his place of business was defective; and (2) defense counsel was ineffective for failing to move to quash the search warrant. We affirm.

FACTS

On the morning of January 25, 1996, the Quad City Metropolitan Enforcement Group (MEG) obtained two search warrants in connection with three boxes that weighed a total of 152 pounds and were destined for delivery to the defendant's place of business, Alberto's Hair Design (Alberto's), at 2125 16th Street, Moline, Illinois. One of the boxes had broken open in transit on Emery Air Freight and contained smaller, taped packages. Personnel from Emery Air Freight suspected that the packages contained cannabis and called the police. After a police canine alerted on all three boxes, Agent Jay Titus obtained the first search warrant. Pursuant to that warrant, the officers took core samples of the contents of the three boxes and installed a beeper device in one of them to monitor when it was next opened. The samples tested positive for cannabis.

Agent Rick Ryckeghem then swore out a complaint for the second search warrant, alleging that the MEG team intended to make a controlled delivery of the three boxes and surveil the defendant's place of business until the boxes were opened. At 11:50 a.m., the circuit judge issued the second warrant authorizing the agents to search Alberto's within 96 hours for cannabis and evidence of cannabis trafficking.

Around 12:10 p.m., MEG agent Randy Wilson, posing as an Emery World Wide employee, delivered the three boxes to Alberto's. At the time, the defendant was cutting one customer's hair, and a third man was seated in another chair in the salon area. The third man accompanied Wilson back to the delivery van and carried one of the boxes inside. Wilson placed the box with the beeper on the floor inside the front door. When he returned with the third box, he noted that the box with the beeper had been removed. Wilson asked where to place the third box, and the defendant said to set it on the floor. The third man then signed the shipping bill as "Alberto Juarez."

Officer Dale Sievert testified that he surveilled Alberto's that afternoon. None of the boxes left the premises. Around 5:45 p.m., Sievert and two other agents executed the second search warrant as the defendant was closing the salon. The boxes were not in sight, but the officers observed a locked door in the office area. The defendant opened the door to a closet, which contained the three boxes earlier delivered by Wilson. An agent noted that one of the boxes had been opened, and the defendant admitted that he knew the boxes contained marijuana.

At trial, in addition to the foregoing evidence, the parties stipulated that the three boxes contained over 20,000 grams of cannabis. The jury subsequently found the defendant guilty of possession of cannabis with intent to deliver, as charged.

ARGUMENT(S) AND ANALYSIS

On appeal, the defendant argues that the warrant authorizing the search of his place of business was statutorily and facially invalid. Because the issue was waived for failure to present it in a pre-trial motion to quash, the defendant ...


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