The opinion of the court was delivered by: Justice Burke
Appeal from the Circuit Court of Cook County.
Honorable Stuart E. Palmer, Judge Presiding.
Following a stipulated bench trial, defendant Rudolfo Carrera was convicted of possession of a controlled substance with intent to deliver and sentenced by the circuit court to 15 years' imprisonment. On appeal, defendant contends that the trial court erred in denying his second motion to quash arrest and suppress evidence because the evidence obtained at the time of his arrest was obtained in violation of his fourth amendment rights in that the Chicago police officers did not have official authority to arrest him in Franklin Park, Illinois, and the officers did not make a valid citizen's arrest. Defendant also contends that the good faith exception to the exclusionary rule, requiring suppression of evidence improperly seized, did not apply to the actions of the Chicago police officers who arrested him in Franklin Park pursuant to a statute that was later declared unconstitutional. For the reasons set forth below, we reverse and remand for further proceedings.
On August 26, 1997, Chicago police officers arrested defendant outside of his house in Franklin Park. Defendant subsequently was indicted by a grand jury on three counts of possession of a controlled substance (cocaine) with intent to deliver. Following the indictment, defendant filed a motion to quash arrest and suppress evidence, arguing that he was arrested by Chicago police officers without probable cause and that he had not freely consented to searches following his arrest. On July 9, 1998, an evidentiary hearing was held during which several witnesses testified. Thereafter, the trial court denied the motion.
Defendant filed a second motion to quash arrest and suppress evidence, arguing that the Chicago police officers had exercised police power outside of their jurisdiction. *fn1 Both sides submitted a supporting memorandum, but did not submit further evidence and relied on the testimony from the first suppression hearing as indicated below.
Defendant testified that on August 26, 1997, after he had gone to a grocery store in the morning, he drove to a storage facility, entered the facility and took out a bag, and returned to his car carrying the bag. He then drove home, parked his car in front of his house, exited the car, and moved toward the trunk. After defendant had opened the trunk, a police officer approached him and told him to place his hands on his car. The officer then took the bag from the trunk and handcuffed defendant. In response to an inquiry by one of the officers, defendant stated that his car was parked in front of his house.
Defendant further testified that the officers took him to the front door of his house, asked him for the key, and entered the house. The officers gathered defendant's wife and children into the living room with defendant, and then they took him to the basement where he showed them the location of a scale. The officers told him to sign some papers, which he signed without reading. The officers then began searching the house. Following the search, the officers took him to jail. During cross-examination, defendant admitted that he did not tell the officers that he could not read the papers that he had signed.
Defendant's wife, Rosa Carrera, testified that at approximately 12:30 p.m., when defendant returned home, she saw four police officers with him. The officers asked her to gather the children into the living room, which she did. Thereafter, the officers asked her husband what other things he had in the house, and he replied that he had a scale in the basement. The officers took her husband to the basement and then returned and began searching the house.
Joseph DiGiacomo testified that on August 26, 1997, he was a detective employed by the Chicago police department. An informant gave him information that a Hispanic male named Rudolfo, residing at 3113 North Emerson in Franklin Park, Illinois, dealt drugs from his house and drove a gray Mercury Marquis. On August 26, at 11 a.m., DiGiacomo, Sergeant DeAntonio and four other Chicago police officers, each in separate vehicles, conducted surveillance around defendant's house in Franklin Park. DiGiacomo was not wearing a police uniform, but he did have a gun, a badge, and binoculars. DiGiacomo admitted that the officers did not obtain a warrant prior to conducting the surveillance.
DiGiacomo further testified that at 12:30 p.m., he saw defendant leave his residence and enter a vehicle parked in front of the house, and drive away. The officers followed defendant to a storage facility in Schiller Park where defendant entered the facility. The officers were able to communicate by using walkie-talkies and they had binoculars. Officer Horton, one of the Chicago police officers participating in the surveillance, signaled that he saw defendant exit the storage facility with a bag which defendant placed in the trunk of his vehicle.
DiGiacomo further stated that the officers then followed defendant back to his residence in Franklin Park. The officers had not observed defendant commit any crimes up to this point. As defendant was removing the bag from the trunk of his car, DiGiacomo drove up next to him, got out of his car, and informed defendant that he was a police officer. DiGiacomo also stated that he had not received any information regarding the involvement of a storage locker. Acting on a "hunch," DiGiacomo asked defendant what was in the bag, defendant replied, "Drug," and defendant handed the bag to him. The other police officers "converged" upon defendant, they discovered that the bag contained cocaine, and DiGiacomo placed defendant under arrest. DiGiacomo further stated that after defendant signed consent forms authorizing the search of his house and the storage facility, defendant was taken inside his house, and a search was conducted of the house. The officers proceeded to the storage facility in Schiller Park, while defendant remained in his house, and they found cocaine in the storage locker. The officers then notified the Schiller Park police, who later arrived at the storage facility.
DiGiacomo and the other officers returned to defendant's house to transport him to a Chicago police station. Franklin Park police arrived at the house before the Chicago police officers left with defendant. On cross-examination, DiGiacomo stated that as defendant signed the documents authorizing the searches, defendant did not tell him that he could not understand the documents or that he could not read them without his glasses.
The State moved for a directed finding on defendant's motion to quash the arrest and suppress evidence, which the trial court denied. The State then called Chicago police officer Ricardo Herrera as a witness. Herrera testified that he was able to converse with defendant in Spanish and that he recited defendant's Miranda rights to him. Defendant indicated that he wanted to get off the street and go inside his home, defendant provided keys to enter the house, and the officers entered the house with defendant. Herrara further stated that defendant's wife and three children were present in the home. Herrera also stated that he presented defendant forms written in Spanish authorizing searches of his home and the storage locker which defendant signed. Herrera remained with defendant and his family while the other officers searched the house. The officers found more cocaine in the garage.
Thereafter, the trial court denied defendant's motion, finding that while the officers did not make a valid citizen's arrest, the information that the officers had was sufficient, pursuant to a good faith exception to the fourth amendment exclusionary rule, to sustain the encounter that occurred between Officer DiGiacomo and defendant at his car. The trial court also found that defendant voluntarily stated that he had drugs in his possession and handed them to the officer as he was approached, defendant willingly entered the premises to remove the scene from the street, and defendant subsequently signed consent forms to search the premises. Defendant later waived his right to a jury trial, and the trial court conducted a stipulated bench trial on January 12, 2000. The stipulated testimony was consistent with the testimony given by Officer DiGiacomo and the other witnesses at the first suppression hearing. The stipulated testimony further indicated that after defendant executed signed consent forms to search his residence in Franklin Park, his garage, and a storage locker in Schiller Park, the officers found a triple beam scale, two 16-ounce jars of manitol used to cut cocaine, $15,000 in defendant's basement and two bags of cocaine in his garage. Two bricks of cocaine were also found in the storage locker. The total weight of the cocaine discovered was 1,981.3 grams (from the bag in the trunk of defendant's car and the amounts found in his basement and garage). The total street value of the cocaine was $328,125.
The trial court found defendant guilty on all three counts of possession of a controlled substance with intent to deliver. Defendant then filed motions for acquittal and arrest of judgment and a new trial. The trial court denied the motions and sentenced defendant to 15 years' imprisonment. This appeal followed.
Defendant contends that the trial court erred in not granting his motion to quash arrest and suppress evidence. Defendant argues that because Public Act 89--404, amending the Illinois Municipal Code and permitting peace officers to make an extraterritorial arrest, was ruled unconstitutional and void ab initio while his case was pending in the trial court, the Chicago police officers did not have authority to arrest defendant in Franklin Park under non-emergency conditions. Defendant also argues that the actions of the police in effectuating the extraterritorial arrest here could not be "saved" as a valid citizen's arrest because the officers "asserted official authority" during the arrest.
The State argues that the police officers effectuated a proper citizen's arrest. The State claims that defendant voluntarily gave DiGiacomo the bag containing cocaine, giving DiGiacomo reasonable grounds to believe that defendant was committing a crime as required by the private citizen's arrest statute. The State further argues that the officers did not use the power of their office to gather any evidence against defendant that would not have been available to private citizens. For example, according to the State, receiving information from a private citizen informant and conducting surveillance with the use of binoculars, walkie-talkies, and radios is not a use of police power unavailable to private citizens. Similarly, the State argues that DiGiacomo's announcement that he was a police officer was not a use of the power of his office because he was not in uniform and was merely introducing himself when defendant freely admitted that the bag he possessed contained drugs in response to DiGiacomo's open-ended question.
Both parties agree that the standard of review here is de novo. Although a court's ruling on a motion to quash arrest and suppress evidence generally is subject to reversal only if the ruling is manifestly erroneous, where the trial court has applied the law to uncontroverted facts, the case presents a question of law that is reviewed under a de novo standard. People v. Krueger, 175 Ill. 2d 60, 64, 675 N.E.2d 604 (1996). Here, defendant relies on the undisputed facts, citing only the testimony of the police officers and not questioning the officers' credibility. Review of this case, therefore, is de novo.
Although not addressed by either defendant or the State in their briefs, based on our de novo review of the legal issues presented on appeal, we feel compelled to consider whether the actions of the police officers here constituted a seizure of defendant. If no seizure occurred because the encounter between the officers and defendant was consensual, the protections of the fourth amendment are not invoked. The fourth amendment to the Constitution of the United States guarantees freedom from unreasonable searches and seizures by protecting against unreasonable governmental intrusions. People v. Neal, 109 Ill. 2d 216, 221, 486 N.E.2d 898 (1985). If there is no such unreasonable government intrusion, there is no search and seizure subject to the warrant clause of the amendment. Neal, 109 Ill. 2d at 221. When a police officer, through the use of physical force or show of authority, has in some way restrained the liberty of a citizen, the court may conclude that a "seizure" has occurred. Murray, 137 Ill. 2d at 388, citing Terry v. Ohio, 392 U.S. 1, 19 n. 16, 20 L. Ed. 2d 889, 905 n. 16, 88 S. Ct. 1868, 1879 n. 16 (1968). Four examples of circumstances which may be indicative of a seizure, even in a situation where the person did not attempt to leave, include: "(1) the threatening presence of several officers; (2) the display of a weapon by an officer; (3) some physical touching of the person of the citizen; and (4) the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Murray, 137 Ill. 2d at 390, citing United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980).
Much of the testimony regarding the encounter between the police and defendant was provided by Officer DiGiacomo, who ...