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People v. Tate

June 26, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ALFONZO TATE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 97 CR 00187 Honorable Stanley Sacks, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cahill

Not Released For Publication

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ALFONZO TATE, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Cook County No. 97 CR 00187 Honorable Stanley Sacks, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cahill

Defendant was convicted after a bench trial of possession of heroin, cocaine, cannabis and unlawful use of a weapon. He was sentenced to concurrent terms of 10 years for possession of heroin, 6 years for each conviction of possession of cocaine and cannabis and 8 years for unlawful use of a weapon. Defendant appeals. We reverse.

 Defendant was arrested in his apartment on October 2, 1996, after execution of a search warrant revealed that he was in possession of heroin, cocaine, cannabis and a .357-caliber revolver. These items were seized and inventoried by the police. Defendant's address on October 2 was 6201 South Champlain, apartment 3N. The building at 6201 South Champlain is a three-flat, with six apartments.

Defendant filed two motions to suppress the evidence seized from his apartment. The first motion argued that the search warrant was invalid because it did not describe the place to be searched with particularity. The warrant listed the address to be searched as 6201 South Champlain, third floor. The warrant did not specify apartment 3N. This motion was denied. Defendant does not challenge the ruling on appeal.

Defendant's second motion to suppress argued that the seizure was invalid because of the police officers' failure to comply with the "knock and announce rule" before forcibly entering defendant's apartment. Carlos Hayes and defendant testified in support of this motion.

Hayes testified that, on October 2, he went to visit his girlfriend at the third-floor apartment in the 6201 South Champlain building. Hayes said he arrived at 10:45 p.m., about 10 minutes before the police came. Hayes said his girlfriend was not home, but that her mother was home with four children. Hayes admitted that his girlfriend's mother was also defendant's mother-in-law. Hayes said he went into the kitchen and spoke with defendant, who was cleaning dishes.

Hayes said he spoke in a low voice because the children were sleeping. There was no television or radio on. Hayes said he then heard two large booming noises from the front door, which was 20 to 30 feet from the kitchen. Hayes denied hearing a knock at the door, but admitted hearing someone yell "police" after the booming noises. Hayes then saw about 10 police officers come in with weapons drawn. Hayes and defendant were told to lie on the floor and not move. They were then led to the living room. Hayes denied that defendant was in the dining room when the police came into the apartment. Hayes also denied seeing a search warrant or that the police recovered anything from the dining room or anywhere else in the apartment.

Defendant testified that, when Hayes came to visit, only his mother-in-law, his three children and his nephew were in the apartment. His mother-in-law was in her bedroom and the children were sleeping. Defendant said he was in the kitchen, in the back of the apartment. Neither the television nor radio was on. Defendant admitted that there is a back door to the apartment in the kitchen which leads to an alley. The kitchen is off the right of a long hallway from the front door in the living room. The dining room is across from the kitchen. Defendant admitted that the front door cannot be seen from the kitchen. There is a front bedroom off the living room.

Defendant said that, while he and Hayes were speaking in low voices in the kitchen, he heard two loud booms at the front door. Defendant denied hearing a noise before then. Defendant then saw police running down the hallway toward him in the kitchen with weapons drawn. He was told to lie down and was later led to the living room. Defendant denied that there was a gun on the dining room table. Defendant said that the door the police came through was split in half and off the hinges. Officer John DuBoise testified that he executed a search warrant for 6201 South Champlain, third floor, on October 2 with 11 other officers. Two were uniformed, the rest were in plain clothes. DuBoise said he was in plain clothes. DuBoise testified that he arrived at the apartment at about 10:53 p.m. DuBoise said he heard a television on in the apartment as he stood outside the front door. He knocked on the door twice and announced his office twice but received no response. DuBoise then entered the apartment. He saw defendant sitting at a dining room table and Hayes in a front bedroom. DuBoise said that some officers entered from the rear of the apartment. DuBoise did not know whether those officers knocked first.

DuBoise admitted, on cross-examination, that neither his arrest nor case reports mentioned that he knocked on the door before entering, announced his office or purpose, that a television was playing loudly or that he gave the occupants time to respond to his knocks. DuBoise admitted that a search warrant data sheet showed that 8, not 12, men entered the apartment that night. DuBoise denied forcing the door down with a battering iron, claiming the door ...


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