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People v. Rivas

December 28, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MILTON RIVAS AND DANIEL COLON, DEFENDANTS-APPELLANTS.



The opinion of the court was delivered by: Justice Tully

Appeal from the Circuit Court of Cook County. Honorable Thomas R. Sumner, Judge Presiding.

Defendants, Milton Rivas and Daniel Colon, were charged with delivery of a controlled substance. The trial court denied defendants' motions to suppress evidence and to produce the State's confidential informant. Following a jury trial, defendants were convicted, and the court sentenced Rivas and Colon to 25 and 15 years in prison, respectively. Defendants' consolidated appeal of their convictions is made pursuant to Supreme Court Rule 603 (155 Ill. 2d R. 603).

For the reasons which follow, we affirm.

FACTUAL BACKGROUND

Before trial, Rivas moved to suppress the contents of tape recordings of his conversations with the undercover police officer in the case. Rivas argued that the trial court improperly granted authorization for the eavesdropping device in violation of sections 108A-3 and 108A-4 of the Code of Criminal Procedure (725 ILCS 5/108A-3, 108A-4 (West 1992)). The trial court denied the motion. The trial court also denied Rivas' motion to produce the confidential informant in the case.

At trial, Chicago police officer Sabina Carlson testified for the State. The police were investigating Rivas on October 1, 1992, when Officer Carlson and a confidential informant known as Martha went to Avik Auto Sales (Avik) to meet with Rivas about buying drugs from him. Officer Thomas Ptacek had introduced the confidential informant to Officer Carlson. Officer Carlson introduced herself to Rivas as Patricia Martinez and told him that she wanted to buy cocaine from him. He told her that he had five big drug clients. Rivas said that he would check her background, and that if it satisfied him and his partners, she could buy as much cocaine as she wanted. He told Officer Carlson that he did not want to know where her money came from or who the drugs were for, and that he did not want to talk to her on the phone. Officer Carlson later wrote a report about the meeting, and the police created a fictitious background for her under the name Patricia Martinez.

Officer Carlson met with Rivas again on October 29, 1992. Surveillance officers watched her go into the Avik sales office alone. Rivas performed the background check to his satisfaction. Officer Carlson asked if she could start by buying a small amount of cocaine, in order to sample the quality. He said that it would be easier for him to get a large amount. Although Martha suggested that he sell the cocaine for $10,500 per kilogram, he and Officer Carlson negotiated on a price of $11,500 per kilogram. Officer Carlson called Rivas on November 4, 1992, and he told her that the "car," meaning the cocaine, would be at Avik that day. When she arrived, Rivas took a small chunk of white powder from his desk and told her that it was a sample from the kilogram of cocaine that she was buying. Officer Carlson then gave Rivas money from the police department to pay for the cocaine. Rivas said that the agreed price was $12,500, and she said that it was $10,500. They agreed on $11,500, and she told him that she would bring the other $1,000 later that day. Rivas then went to the door and told Victor Echevaria, an Avik employee, to bring him his "sandwich." Echevaria came back a few minutes later with a small paper bag and handed it to Rivas, who took out a plastic bag and handed it to Officer Carlson. He told her that the "stuff" was inside. Officer Carlson took the bag, gave Rivas her pager number, and left. She brought the cocaine back to the police station, inventoried it and, prepared a request for a recording device to tape future conversations between herself and Rivas. She went back to Avik later that night to pay Rivas the other $1,000. When she left the office, Rivas told her that they would be seeing each other again for another cocaine deal.

Rivas paged Officer Carlson on November 7, 1992. He asked her what she thought of the drugs, and she said she was upset because she had received less than one-half of a kilogram of cocaine. On November 12, 1992, Officer Carlson obtained a court order allowing her to tape record her conversations with Rivas. They met again on November 17, 1992 to discuss another drug deal and to discuss whether she had received less cocaine than she had paid for. Officer Carlson taped the conversation. Rivas told her that he had fired his runner - the person who carried the drugs - because he had had problems with him before. He also said that the more drugs she bought, the cheaper they would be. Rivas said that the next time she bought drugs, she would have to go to a different location and she would receive them from a woman. He did not want the money and the cocaine in the same place in case the police caught him. Rivas told her a story about another customer who owed him money and paid him with interest when Rivas found him. He also told Officer Carlson that when his organization transported drugs they would use two cars. The "load car" would carry 100 kilograms of cocaine and another car would be nearby to get into an accident if the police stopped the "load car." The State played the tape of that conversation for the jury.

Officer Carlson testified that she went back to Avik on November 20, 1992 to tell Rivas that she wanted to buy eight and one-half kilograms of cocaine the next time she came to see him, and he said that she could. On November 30, 1992, Rivas told her that he could not get that amount for her because she had not dealt with him often enough, but that after she bought smaller quantities, he could sell her that amount. Rivas also explained that he did not want to have too much money at Avik because he wanted to say that the money had come from car sales if the police asked him about it. They agreed on a total price of $33,500 for one and one-half kilograms of cocaine that she was to buy that day. Officer Carlson left and returned later that day to buy the cocaine. When she arrived at Avik, she saw Nestor Solis standing outside the office trailer. She paid Rivas in the office. He then received a phone call and told her that the drugs would be there in 10 minutes. Rivas received another call and said "I'll be right there." He told Officer Carlson that he would be back and to wait in the office. She insisted on going with him. They went outside and Rivas told her to look at cars while he went into another trailer. Officer Carlson saw Solis and Colon, the other defendant, standing near the trailer. Rivas spoke to Colon for a few minutes and they went into the trailer. Solis stayed outside, watching Officer Carlson. Colon came out a few minutes later, went to a black Jeep parked in the lot, took a blue and pink box out of the Jeep, and went back into the office. A few minutes later, Colon came back out of the trailer without the box, and passed Officer Carlson as she went to the trailer. The box was on the table when Officer Carlson went into the office. Rivas removed a foil package from it and removed a plastic bag of white powder from the foil package. Officer Carlson brought the white powder back to the police station for lab testing.

On cross-examination, Officer Carlson testified that she did not know why Rivas had come under investigation and did not know if any police officers had met with Rivas before she had met him. She had not known the informant before Officer Ptacek had introduced them, and she did not know why the informant was helping the police. The informant was not present during any of the drug deals with Rivas. Officer Carlson also testified that she contacted Rivas 7 to 10 times during the investigation, and that there were several times when Rivas could not produce the drugs. She never saw Colon at the car lot other than on November 30, 1992, and his voice never appeared on the tape recordings.

Rivas again moved to produce the confidential informant after Officer Carlson's testimony. The trial court denied the motion and found that the informant was not a "transactional" informant for disclosure purposes because she was only present for the original introduction of Rivas to Officer Carlson.

Officer Ptacek testified that the confidential informant told him that Rivas was selling large amounts of cocaine and told her that he was looking for customers. The informant had been working with the police for six months before the investigation, and the police paid her $2,500 for her help. Officer Ptacek introduced Officer Carlson to the informant and told her not to be in contact with Rivas after she introduced Rivas to Officer Carlson.

On November 30, 1992, Officer Ptacek withdrew $33,500 in pre-recorded funds from the bank for Officer Carlson's purchase of the one and one-half kilograms of cocaine. Later that day, he watched Colon drive to Avik in a black Jeep and go into the sales office. Colon came back out to the Jeep and took out a blue and pink box. He brought the box to the office, then came back out without the box and drove away. Officer Ptacek saw Officer Carlson a few minutes later carrying the same box. When Officer Carlson gave him the signal for the arrest, he arrested Solis and Rivas. He saw cocaine on the desk, which Rivas explained was for personal use. He and other police officers also found $1,500 of the pre-recorded police money, the credit report for Patricia Martinez, and a piece of paper with dollar amounts written on it from the drug price negotiations between Rivas and Officer Carlson. Officer Ptacek also arrested Echevaria, the Avik employee. On December 1, 1992, after a custodial search of the Jeep, Officer Ptacek found a Cobra cellular telephone which appeared to have come from the blue and pink box. On cross-examination, he testified that he did not know whether the confidential informant had any subsequent contact with Rivas. He also stated that he never subpoenaed the telephone records for Rivas' home phone or the Avik phone. He never saw Rivas make a drug deal with anyone other than Officer Carlson during the investigation. The first time he saw Colon was on November 30, 1992.

Chicago police officer Anthony Luna testified that on November 30, 1992, he was watching the car dealership. Over the radio, he heard that Officer Carlson was going into the car lot and that a Jeep was arriving. Officer Luna was told that the person in the Jeep, Colon, was involved in the drug transaction and that he had the money. Officer Luna and other officers followed Colon and asked him to get out of the Jeep. Colon refused, and the officers arrested him. They found $32,000 packaged in bundles of $1,000. At the police station, they found $656 in Colon's pocket, which he told them was drug money. On cross-examination, Officer Luna testified that his ...


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