The opinion of the court was delivered by: Justice O'brien
Appeal from the Circuit Court of Cook County
Honorable Edward Fiala, Judge Presiding.
A jury found defendant, Adolpho Leon, guilty of one count of possession of a controlled substance, one count of possession of a controlled substance with intent to deliver, and one count of possession of cannabis with intent to deliver. The trial court sentenced defendant to 15 years in prison. Defendant appeals, contending: (1) the trial court erred by denying his motion to suppress; and (2) his posttrial counsel provided ineffective assistance. We affirm.
At the hearing on the motion to suppress, Officer Manuel Godinez testified that on the morning of July 27, 1994, he and six or seven other police officers went to defendant's first-floor apartment to execute a search warrant. Officer Godinez knocked on the apartment door. A person inside the apartment responded, "Who is it?" Officer Godinez announced his office and told the person inside to open the door. The officers received no response, so they forced open the door and entered the apartment.
Officer Godinez testified that, upon entering the apartment, he saw defendant standing in a hallway and shortly thereafter he saw a young child seated on a sofa in the living room. Officer Godinez explained to defendant that they were executing a search warrant, and the officer asked defendant whether he had any narcotics or weapons in the apartment. Defendant then led Officer Godinez to the bathroom, where the officer recovered a quantity of cocaine. Officer Godinez next asked defendant, "Where is the gun at?" Defendant responded, "It's in the bedroom." Officer Godinez walked to the bedroom, where he saw defendant's wife, Marisol. Marisol was subsequently "taken" into the living room and seated with her child on the couch. Officer Godinez searched the bedroom closet and found a loaded, semi-automatic pistol. Officer Godinez placed defendant under arrest and read him his Miranda rights.
Officer Godinez testified that he searched defendant and discovered a set of keys in defendant's pants pocket. The smallest key was about half the size of the other keys and appeared to be for some sort of locked container. Officer Godinez was unable to find anything in the apartment that the key fit, so he approached Marisol in the living room, "fanned" the key ring, and asked her what the small key was for. Marisol responded that the key fit their storage locker downstairs. Marisol further told the officer that the storage locker contained clothes and she gave him permission to "go look" in the storage locker. Officer Godinez testified that he went downstairs to the basement, where he saw a row of storage lockers. Officer Godinez eventually used the key to open locker number 10. Inside the locker was a yellow pail containing six brown, taped packages that Officer Godinez believed to be kilograms of cocaine. Officer Godinez also recovered four large plastic bags from the locker, all containing a "crushed green plant."
During Officer Godinez's testimony, the State showed him some photographs of the storage lockers taken by a fellow police officer about 10 minutes after the narcotics were recovered. In those photographs, the storage lockers appear undamaged. Officer Godinez testified that the photographs accurately depicted the condition of the storage lockers on July 27, 1994. Officer Godinez was also shown defense photographs of the storage lockers. In those photographs, the hinges on some of the lockers, including locker number 10, appeared to be damaged. Officer Godinez testified that those defense photographs did not accurately reflect the condition of the storage lockers on July 27, 1994.
Marisol Leon testified that at approximately 9 a.m. on July 27, 1994, she and her husband were awakened by the sound of a loud "bang" on the front door of their apartment. Defendant got up from bed and walked to the doorway of their bedroom. Suddenly, four or five police officers entered their bedroom, pushed defendant against a wall, and pointed guns at his head. The officers then took defendant out of the room.
Marisol testified that, a few moments later, she joined defendant and their son in the living room. While Marisol was sitting in the living room, she heard the officers searching their bedroom. After the police left, Marisol went downstairs and saw that the storage lockers there had been damaged. Marisol testified that at no time did a police officer show her a key or ask her if they could search the basement or storage locker.
At the end of the testimony on the motion to suppress, the trial court denied the motion, ruling that Marisol had voluntarily consented to the search of the storage locker.
At trial, Officer Godinez reiterated his testimony at the suppression hearing concerning his discovery of narcotics in defendant's apartment and in the storage locker. Officer Godinez also testified that after recovering the narcotics and cannabis from the storage locker, he returned upstairs. As the officer approached his sergeant, defendant told him, "She didn't even know that was down there."
Defendant testified at trial that at approximately 10 a.m. on July 27, 1994, he was in bed with his wife when he heard a loud noise. Defendant got out of bed and encountered police officers, who grabbed him and sat him in the living room. Shortly thereafter, his wife was brought into the living room with him.
Defendant testified that he remained in the living room the entire two-hour time period that the officers searched the apartment; he denied leading any police officer to find evidence. Several times during the search, Officer Godinez came into the living room and showed him things including money from the kitchen cabinet and cocaine he had found in the bathroom.
Defendant testified that Officer Godinez also showed him a yellow bucket. Defendant told the officer that he didn't know to whom it belonged. Defendant denied having any narcotics or contraband in his storage locker.
Richard Stopka, defendant's original defense attorney, testified that on July 27, 1994, he was asked to represent defendant. Stopka went to defendant's apartment building and inspected his first-floor apartment and the basement storage area. Stopka testified that several of the storage lockers appeared to have been broken into.
Both parties stipulated that the contraband recovered from defendant's apartment contained .55 grams of cocaine. The contraband recovered from the storage locker contained 1,425.9 grams of cannabis and 6,032.6 grams of cocaine.
The jury found defendant guilty of one count of possession of a controlled substance, one count of possession of a controlled substance with intent to deliver, and one count of possession of cannabis with intent to deliver. The trial court sentenced defendant to 15 years in prison. Defendant filed this timely appeal following the denial of his posttrial motion.
First, defendant argues the trial court erred in denying his motion to suppress because Officer Godinez failed to tell Marisol that she was under no obligation to answer his question about the key he had found in defendant's pocket. In support, defendant notes that Officer Godinez first searched the apartment and determined that the key did not fit any lock therein. Therefore, defendant contends that by the time Officer Godinez questioned Marisol about the key, the search of the apartment was completed and the officer's questioning of Marisol represented an intent to extend his search beyond the apartment, that is, beyond the scope of the search warrant. Defendant argues that in order to so extend the scope of the search, Officer Godinez was required to inform Marisol that the initial search was completed and that she was under no obligation to answer his question about the key or otherwise consent to another search.
Defendant cites no Illinois case law which supports his argument. However, defendant does cite a case that was pending in the Illinois Supreme Court at the time he filed his brief in this court, People v. Brownlee, No. 84739. Defendant anticipated that Brownlee would hold that the Illinois Constitution requires police officers to provide notification of the termination of the initial police action before seeking consent for a further search. Defendant argued that should the supreme court so hold, then Officer Godinez's failure to inform Marisol ...