Appeal from the Circuit Court of Cook County No. 95 CR 11316 The Honorable James P. Flannery, Jr., Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cousins
Police officers procured a search warrant for the defendant and his apartment based on an informant's tip. An officer was watching the apartment while awaiting the arrival of other police officers in order to execute the search warrant. Before other officers arrived, he observed the defendant exit the apartment and drive away in an Oldsmobile. The officer followed and apprised other officers of the situation. The defendant parked the Oldsmobile on the street, entered an alley garage and exited after about 20 minutes driving a Chevrolet with license plate number JMJ-792. The defendant was then stopped by the police. Cocaine was found on the defendant's person and he was placed under arrest. His car was then searched and drugs were found in a compartment behind one of the seats. The police took him back to his apartment where drugs and related paraphernalia were found. The defendant then signed a consent form for the police to search the garage. The police found large amounts of cocaine and marijuana in the garage.
The defendant was charged by indictment with four counts of possession of cocaine with intent to deliver and four counts of possession of cannabis with intent to deliver. The defendant moved to quash arrest and suppress evidence. The motion was denied by trial court. A jury found the defendant guilty. He was sentenced to concurrent sentences of 15 years in prison for possession of cocaine with intent to deliver and six years in prison for possession of cannabis with intent to deliver. The court also imposed a fine of $154,835.57 as the street value of the drugs.
The defendant now appeals, arguing that the trial court should have granted the motion to suppress because: (1) the search of his person was not authorized by the warrant except at his apartment; and (2) the police had no basis to search his car. Further, the defendant argues that his cannabis conviction must be vacated because the judge gave the jury a figure that was not in evidence as to the amount of drugs seized. The defendant also contends that the fine must be vacated because there was not a basis in the record for the court to assign a street value to the drugs. The State argues that the fine must be increased by $10,000 because a prosecutor inadvertently gave the trial judge the wrong figure for the street value.
Chicago police officer Earnest Cain testified that on February 17, 1995, he was watching an apartment on North Campbell as he waited for other police officers to arrive in order to execute a search warrant. Three days earlier an informant had told Officer Cain that the defendant, Manuel Gonzalez, had bagged and sold cocaine to him at the apartment. The informant also related that he had helped Gonzalez to conceal some cocaine in a white Chevrolet with license plate number JMJ-792. This informant had provided information to the police three times in the previous year. The tip had led to the recovery of narcotics on each occasion. Cain put this information in an affidavit and applied for a search warrant. A judge issued the warrant on a preprinted form. Gonzalez' name was typed in the blank labeled "person." The address of the apartment was typed in the blank labeled "premises." In the blank labeled "instruments articles and things" was typed "a quantity of cocaine and related narcotic paraphernalia, any document or items that could be used as proof of residency and any United States currency."
Before the other officers arrived to perform the search of the apartment, Cain saw Gonzalez exit the building and drive away in a brown Oldsmobile. Cain followed Gonzalez and apprised the officers en route of the situation. Gonzalez parked the Oldsmobile on the street at Diversey and Richmond. He then entered an alley garage using an automatic garage door opener and closed the door after him. About 20 minutes later, Gonzalez exited the garage driving a white Chevrolet with license plate number JMJ-792. Cain stopped Gonzalez with the assistance of the other officers about six blocks away from the garage.
Cain asked the defendant his name. The defendant responded that his name was Gonzalez. Cain then showed Gonzalez the search warrant and proceeded to search Gonzalez' person. The search produced a plastic bag with a white powder that looked like cocaine. Cain placed Gonzalez under arrest. The officers moved the car into a nearby alley. Cain searched the passenger compartment of the Chevrolet while Gonzalez was sitting, handcuffed, in the back of a police cruiser.
Cain testified that drugs are frequently transported in secret compartments or "traps" in cars and that these traps are often accessed using an electronic switch. While searching the car, Cain saw two indentations behind the passenger side sun visor that, Cain said, looked like trap switches. When he pressed them, however, nothing happened.
He then started the car and pressed them again, again to no avail. After that, Cain started pressing all the buttons on the dashboard. When he pressed the rear defrost button, Cain said, one of the rear seats fell forward of its own accord, revealing a large quantity of cocaine and marijuana.
The officers then took Gonzalez and the Chevrolet to the apartment at North Campbell. When they knocked at the door, Lucy Sanchez, Gonzalez' live-in girlfriend, answered but did not open the door. One of the officers suggested breaking the door down, but Gonzalez opened the door with a key. Once inside, the officers found a small amount of cocaine and marijuana. They also found a gram scale, a spoon with cocaine residue on it, plastic freezer bags, and a letter sent to Gonzalez at that address.
When confronted with this evidence, Gonzalez confessed that he had been bagging and delivering drugs for a man named "Roberto." He signed a consent form for a search of the garage on Diversey and Richmond.
Officers then went to the garage and opened it with the garage door opener that Gonzalez had used. Inside the garage the officers found 20 pounds of marijuana in 20 bags and over a kilogram of cocaine in two bags, along with a scale and packaging materials. In accordance with police department policy, the police retained 10 of the bags of marijuana for evidence. The other 10 were destroyed in order to save space.
Chicago police officer Richard Rowan also testified, largely corroborating Cain's testimony.
Gonzalez testified that the apartment belonged to his girlfriend and that he left the apartment on February 17, 1995, in order to go to a job interview. Although he was driving an Oldsmobile when he left, he had a newer Chevrolet that was in better condition parked in a garage in which he had recently rented space from a friend of his brother-in-law. Gonzalez said that the first time he had been in the garage was when he put his car inside the night before. He decided to drive the Chevrolet to the interview since he thought it would make a better impression. He stopped briefly in the garage in order to check his oil.
Gonzalez testified that the police stopped him and searched him without showing him a warrant. He said that the police did not find anything on him. He sat in the back of a police car for an hour before being taken to the North Campbell apartment. When they knocked, Sanchez answered the door but would not let them in because she was not fully dressed. Sanchez opened the door, however, when the police began to kick it. Gonzalez testified that he signed the consent form not knowing what it said because the police threatened to arrest Sanchez and take away her children. He denied that he confessed to working for a man named Roberto. Gonzalez said that he had used the rear defroster in the Chevrolet before and that it operated normally. He said that he lived on Moody Avenue but received mail at the North Campbell address because he had been having trouble with the mail delivery at his primary residence. Gonzalez testified that he did not know that there were any drugs in the Chevrolet or in the garage.
Arsenio Gutierrez testified that he owned the garage and that he rented it to Roberto for $125 per month. He said that he gave the only opener to Roberto. Gutierrez said that he did not know Gonzalez and had never seen him. He admitted, ...