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05/19/97 PEOPLE STATE ILLINOIS v. SERVELION LLANOS

May 19, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SERVELION LLANOS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 93 CR 23230. Honorable Vincent Gaughan, Judge Presiding.

Released for Publication June 25, 1997. As Corrected July 29, 1997.

The Honorable Justice O'brien delivered the opinion of the court. Hoffman, J., and Theis, J., concur.

The opinion of the court was delivered by: O'brien

The Honorable Justice O'BRIEN delivered the opinion of the court:

Defendant, Servelion Llanos, appeals from a guilty verdict entered after a bench trial on drug possession and distribution charges. We affirm.

On September 13, 1993, Chicago Police Officer Salvatore Inglima sought a search warrant for an alleged drug dealer named "Jose" and the premises at 3417 West Evergreen, Chicago. The complaint for search warrant was based upon a tip from a reliable confidential informant that the informant had purchased cocaine from Jose at that address. The complaint further stated that, following the exchange, Jose "placed the remaining bags of cocaine *** into a box." A warrant was issued authorizing a search of the

"person of 'Jose', a male, white Hispanic, dark, wavy hair, dark eyes, olive complexion, approximately 6'0", 160-170 lbs., thin build and the 2nd floor rear apartment at 3417 West Evergreen Street, Chicago, Cook County, Illinois."

The warrant further authorized seizure of the following instruments, articles and things:

"Cocaine, Cocaine paraphernialia, co-mingled United States Currency, proof of residency and any other items in direct violation of Illinois Controlled Substance Act or any items which have been used in the commission of, or which constitute evidence of the offense of ILLINOIS COMPILED STATUTES, Chapter 720 ยง 570/402, Possession of a Controlled Substance." (Emphasis original.)

On September 14, 1993, Officer Inglima and other members of the Chicago Police Department Organized Crime Division Task Force staked out the two-story apartment building located at 3417 West Evergreen in preparation to execute the search warrant. While on the stakeout the officers observed the defendant carry a gray metal box into the building. Some 15 minutes later, the officers entered the apartment building and proceeded to the second floor. There they encountered Jose Gonzalez exiting the rear apartment. The officers placed him in custody and began to search the apartment.

The defendant was found seated at the kitchen table with the closed tool box on the table in front of him. Officer Inglima performed a protective pat down search of defendant, then opened the tool box and recovered from it a brick-shaped package containing approximately one kilogram of cocaine. Officer Inglima then informed defendant that he was under arrest and advised him of his Miranda rights. Officer Armando Ramirez translated the warning into Spanish. As the search proceeded, Officer Ramirez spoke to defendant in Spanish and obtained written consent to search the defendant's apartment located at 4647 North Keystone Avenue in Chicago. There, the officers discovered two additional brick-shaped packages containing a total of approximately two kilograms of cocaine.

The defendant was charged with possession with intent to deliver all three kilograms of cocaine. Defendant's subsequent motion to quash his arrest and suppress the evidence obtained in the two searches was denied. Following an evidentiary hearing the trial court concluded that Officer Inglima, in opening the tool box, was conducting a protective search of the box and had a right to do so for his own protection, and that he had the right to search the defendant pursuant to section 108-9 of the Code of Criminal Procedure of 1963 (725 ILCS 5/108-9 (West 1991)), which allows police to detain and search persons on the premises at the time the search warrant is executed. The court further found that the defendant's consent to the search of his apartment was voluntarily given.

After a bench trial, the defendant was found guilty of possession with intent to deliver approximately three kilograms of cocaine and sentenced to 17 years in the Illinois Department of Corrections. This appeal followed.

On appeal, we are asked to determine whether the trial court erred when it denied defendant's motion to suppress (1) evidence seized from a tool box owned by defendant during a warrant search of the person and premises of another and (2) evidence ...


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