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People v. Calderon

December 20, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
FRANCISCA CALDERON, JOSE JIMENEZ, AND SERGIO PEREZ, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County Honorable Vincent M. Gaughan, Judge Presiding.

The opinion of the court was delivered by: Justice O'mara Frossard

UNPUBLISHED

Defendants Francisca Calderon, Jose Jimenez, and Sergio Perez were charged with one count of possession of cannabis with intent to deliver and two counts of possession of a controlled substance with intent to deliver after drugs were found in a residence which they were observed entering and exiting. Each defendant filed a motion to quash arrest and suppress evidence, which the trial court granted. In support of its order granting those motions, the trial court found that although the police had sufficient information to initially detain defendants and conduct an investigative stop, their continued detention of defendants constituted an arrest without probable cause. In addition, the trial court found that consent to search forms signed by Jimenez and Calderon were invalid and, therefore, did not authorize the police to enter and search the residence in question. The State appeals, contending that the drugs recovered during the search of the residence should not have been suppressed because defendants' detention constituted a lawful investigative stop pursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and Jimenez and Calderon gave valid consent to search the residence where the drugs were recovered.

BACKGROUND

At the hearing on the motion to suppress, Perez testified he lived with Calderon, his girlfriend, at 6234 South Francisco Avenue in Chicago. On August 26, 2000, Perez drove Jimenez and Calderon to the Francisco Avenue residence in his car, a 1991 Cadillac. They arrived around noon, parked in the rear carport, and went inside the house. A few minutes later they came back outside, got into the car, and drove away.

Approximately two blocks from the house an unmarked police car pulled over Perez's car. Three police officers ran up to Perez's car with their guns drawn and yelled at defendants, ordering them to get out of the car and spread their hands on its trunk. The officers searched defendants but did not find any drugs or guns on them. The officers then handcuffed defendants, placed them in the backseat of an unmarked police car, and searched Perez's car for approximately 10 minutes. The officers did not find any drugs or guns in the car.

Perez stated that approximately 20 minutes after searching the car, the officers drove defendants back to the Francisco Avenue residence. The officers took Perez and Calderon out of the police car and separately questioned Calderon. After questioning Calderon, the officers opened the back door of the Francisco Avenue residence with a key removed from Perez's belt by one of the officers. Perez testified that the officers took defendants into the dining room and had them sit handcuffed while they searched the house. The officers did not have a search warrant and, according to Perez, did not ask defendants for permission to enter or search the home before beginning their search. Perez estimated that 10 to 12 officers were in the house at the time of the search. A few minutes after the search began, one of the officers came up from the basement and indicated drugs had been found.

Following the search, an officer approached Perez and asked him to sign a consent to search form. Perez refused despite the officer's insistence that signing it would be best for him. An officer then approached Jimenez, asked him in Spanish to sign the consent form, and repeatedly told him that if he signed the consent form, he would be allowed to go home. When Perez told Jimenez in Spanish not to sign anything, the officer yelled at Perez, telling him to shut up and mind his own business. Jimenez eventually signed the consent form. An officer then approached Calderon and asked her to sign the consent to search form. Perez stated that while asking her to sign the form, the officer was "scaring her[,] yelling at her[,] and trying to intimidate her." She, too, signed the consent form, and defendants were subsequently formally arrested and taken to the police station.

On cross-examination, Perez admitted he knew the drugs were in the basement of the house on Francisco Avenue, and that he leased that house using a name which was not his own. In addition, Perez admitted that although he had purchased the Cadillac he was driving about a month prior to the stop by the police, he never changed the title to reflect he was the new owner.

Sergeant Joseph Salemme of the Chicago Police Department testified that he spoke with a confidential informant by telephone around 4 p.m. on August 25, 2000, the day before defendants were stopped by the police. The informant told him that a large amount of drug-related money was being stored in a second-floor apartment at 1633 South Austin Avenue in Cicero, that marijuana and cocaine were being stored in the basement of 6234 South Francisco Avenue in Chicago, and that both these addresses were related to the same organization. The informant described a white male Hispanic in his forties, about 5 feet 8 inches tall, 180 pounds, with a scar under his left eye. In addition, he stated that the home on Francisco Avenue had two 25-year-old Hispanic occupants, one male and one female. The male was 5 feet 10 inches tall, 200 pounds, and significantly tattooed; the female had long, dark hair. Based upon this information, which was received at around 4 p.m. on August 25, 2000, and was less than 48 hours old, he ordered surveillance of both addresses. The Francisco Avenue residence was under surveillance approximately 20 hours before defendants were stopped on August 26, 2000. The record reflects no attempt was made to obtain a search warrant for the Francisco Avenue residence.

Shortly after talking with the informant, Sergeant Salemme went to the apartment at 1633 South Austin Avenue, Cicero, to participate in the surveillance. That evening Sergeant Salemme and Detective Maher attempted to gain access to the Cicero apartment by ringing the front doorbell. When no one answered, Detective Maher went to the back of the building. He observed a white Hispanic female with long, dark hair looking out the rear window of the second-floor apartment. He observed her run down into the basement laundry room with a gray and black shoe box, place the box under a blanket, and run back upstairs.

Sergeant Salemme and Detective Maher knocked on the door of the first-floor apartment at 1633 South Austin Avenue and spoke with Maria Hermosillo, who answered the door. They asked her if she would allow them to search the common area of the basement laundry room. After she agreed and signed a consent to search form, the two officers entered the laundry room and recovered the shoe box Detective Maher had previously observed. It contained approximately $129,480 in United States currency. The white Hispanic female observed by Detective Maher placing the shoe box in the basement was not defendant Calderon.

The following morning Sergeant Salemme informed Officer Jerry Masterson of the recovery made in Cicero and ordered him and his fellow officers to conduct an investigatory stop of anyone leaving the house on Francisco Avenue matching the descriptions given by the informant. At around 1 p.m. Officer Masterson phoned Sergeant Salemme and told him he had just stopped three people in a Cadillac who matched those descriptions. At no time during the detention of the defendants was an attempt made to obtain a search warrant for the Francisco Avenue residence.

In response to Officer Masterson's phone call, Sergeant Salemme went to the house on Francisco Avenue. Sergeant Salemme stated that when he arrived there, at approximately 1:30 p.m., defendants had been held for at least 40 minutes. Sergeant Salemme told defendants "what [their] investigation had yielded so far" and, in the presence of another officer, separately spoke with each defendant in the alley next to the house and asked each of them for permission to search the Francisco Avenue residence. Sergeant Salemme acknowledged that none of defendants was given any Miranda warnings. Sergeant Salemme stated that Calderon and Perez were not handcuffed when he spoke with each of them, but he did not indicate whether Jimenez was handcuffed when he spoke with him. Perez told Sergeant Salemme he did not live at the residence and refused to sign a consent to search form. Calderon, on the other hand, told Sergeant Salemme she lived there, and signed a consent to search form. Jimenez also signed a consent to search form.

After the consents were signed by Calderon and Jimenez, the officers entered the home using a set of keys that had been removed from Perez and subsequently found over 2,100 pounds of marijuana, approximately 29 pounds of methamphetamine, and 10.5 kilograms of cocaine in the basement.

On cross-examination, Sergeant Salemme admitted that defendants were not allowed to leave from the time they were first stopped two blocks from the Francisco Avenue residence. In addition, he acknowledged that he could not recall whether defendants were handcuffed when they were taken into the house on Francisco Avenue. Sergeant Salemme initially stated on cross-examination that he spoke, in order, with first Calderon, next Perez, and last Jimenez, and that Calderon and Jimenez signed consent forms after their respective conversations with him. Sergeant Salemme subsequently acknowledged, however, that the consent forms both listed 1:50 p.m. as the time they were signed. Regarding that inconsistency, he explained that, although he spoke with Calderon and Jimenez separately, he ultimately read the consent forms to both of them together and then had them sign the respective forms at the same time. Sergeant Salemme denied that any search was conducted before the consent forms were signed.

Sergeant Salemme approved and signed two case reports written in connection with the instant case, one for the Cicero surveillance leading to the recovery of money and the other for the Francisco Avenue surveillance leading to defendants' arrests and the recovery of drugs. The reports, which were begun one or two days after defendants were arrested, did not indicate that Sergeant Salemme called Officer Masterson and directed him to stop any Hispanic men or women leaving the house on Francisco Avenue matching the descriptions provided by the informant. The report relating to the Cicero surveillance included the informant's description of the male Hispanic with a scar on his face, but did not include the descriptions of the other two people he mentioned to Sergeant Salemme. The report relating to the Francisco Avenue surveillance included the descriptions of all three people described by the informant. The reports did not indicate at what time the officers first entered the Francisco Avenue residence. Additionally, one of the reports stated defendants were stopped at 11:50 a.m., not 12:50 p.m., as Sergeant Salemme testified. Sergeant Salemme stated that the "11:50" notation was a typographical error and admitted he noticed this error while reviewing the reports in connection with defendants' motions but never corrected it or prepared a supplemental report.

Officer Jerry Masterson testified Sergeant Salemme called him at 9 a.m on August 26, 2000, and asked him and other members on his team to assist the team which had the 6234 South Francisco Avenue residence under surveillance. Sergeant Salemme told Officer Masterson he had recovered a large sum of money in Cicero in an investigation related to the surveillance of the Francisco Avenue residence and gave him descriptions of three suspects. One of the suspects was a male Hispanic who was approximately 40 years old, 5 feet 7 inches tall, and 180 pounds. The other two suspects were a 5-foot 10-inch tall, 200-pound male Hispanic with multiple tattoos on his body and a female Hispanic with long dark hair. Both of them were approximately 25 years old.

Officer Masterson and the other officers on his team went to the Francisco Avenue residence and set up surveillance. Between 12:45 p.m. and 1 p.m., Officer Masterson saw a maroon Cadillac circle the block twice, turn into the alley on its third pass, and park in the carport at the Francisco Avenue residence. All three persons in the car, who were identified at the hearing as defendants, got out of the car and went inside the house. Approximately 10 to 15 minutes later defendants came out of the house and left in the car. Shortly thereafter, Officer Masterson and his fellow officers pulled over defendants' car a few blocks from the Francisco Avenue residence. The officers drew their guns, identified themselves as the police, and ordered defendants out of the car. Defendants were searched and handcuffed, but no weapons or contraband were found on them. The car was searched and ...


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