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People v. Gutierrez

Court of Appeals of Illinois, Third District

December 7, 2016

RICARDO GUTIERREZ, Defendant-Appellant.

         Appeal from the Circuit Court of Will County, No. 07-CF-2219; the Hon. Carla Alessio-Policandriotes, Judge, presiding. Judgment Reversed and remanded with directions.

          Kathleen T. Zellner and Nicholas N. Curran, of Kathleen T. Zellner & Associates, P.C., of Downers Grove, for appellant.

          James Glasgow, State's Attorney, of Joliet (Thomas D. Arado, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          Panel JUSTICE LYTTON delivered the judgment of the court, with opinion. Justice McDade specially concurred, with opinion. Justice Schmidt dissented, with opinion.



         ¶ 1 Defendant, Ricardo Gutierrez, appeals the denial of his motion to quash arrest and suppress evidence, arguing that he was arrested without probable cause when several police officers entered his residence in the early hours of the morning, woke him, handcuffed him, and did not tell him that he was free to leave. We reverse and remand with directions.

         ¶ 2 FACTS

         ¶ 3 Defendant was charged by indictment with two counts of first degree murder (720 ILCS 5/9-1(a)(1), (2) (West 2006)) with codefendant Gabriela Escutia. The indictment alleged that defendant and Escutia shot Javier Barrios with a handgun, causing Barrios's death on October 28, 2007.

         ¶ 4 Defendant filed a motion to quash arrest and suppress evidence, arguing that he was arrested in his home at approximately 5:20 a.m. on October 29, 2007, without a warrant or without probable cause. The motion argued that statements made by defendant while in police custody following his arrest should be suppressed as the product of an unlawful arrest.

         ¶ 5 A hearing was held on defendant's motion. Officer Robert Plutz of the Plainfield police department testified for the State. Plutz testified that he assisted in the investigation into the death of Barrios who was shot in a parking lot near the Meijer gas station in Plainfield.

         ¶ 6 Once the officers identified Barrios as the victim, they "ran his information" and learned that Escutia had an order of protection against him. The officers then "ran the information" on Escutia and obtained a general description of her and her vehicle. Plutz obtained Escutia's address, which he believed was in Plainfield. Plutz requested that a patrol car drive by Escutia's residence to see if her vehicle was parked outside. An officer drove by Escutia's residence but did not observe her vehicle there.

         ¶ 7 Sergeant Troy Kivisto asked Plutz to make exigent circumstances requests on Barrios's and Escutia's cell phone numbers. Plutz requested cell phone records from Escutia's cell phone company. Plutz sent a fax to the phone company at approximately 11:25 p.m. on October 28 stating, "Per our phone conversation today, the reason we needed the phone records were [sic] to quickly follow up on any leads, identification on owners and persons of interest in our homicide case." Plutz testified that a person of interest could include a witness, someone with knowledge, or a suspect. Plutz sent a second fax to the phone company requesting Escutia's records, including incoming and outgoing calls, cellular tower pings, texts, and voicemails. Plutz also requested that the phone company "put a freeze on" Escutia's voicemails.

         ¶ 8 After Plutz requested the records, Kivisto informed him that they were going to Chicago to meet Secret Service agents who were going to help them locate Escutia's cell phone. Three Plainfield officers and several Kendall County officers met the Secret Service agents at the District 9 police station in Chicago. The Plainfield and Kendall County officers drove around with the Secret Service agents for two to three hours while the agents tried to locate Escutia's cell phone. Several Chicago officers joined them as well. The Secret Service agents learned that Escutia's alternative billing address was a residence in Chicago.

         ¶ 9 Plutz and approximately seven other officers arrived at the residence of the alternative billing address at approximately 5:20 a.m. The Chicago officers went up to the front door and knocked. The Plainfield officers were behind the Chicago officers. A Chicago officer had a conversation in Spanish with the individual who answered the door. A female resident let the officers in. One of the Chicago officers spoke with the female resident and filled out a permission to search form with her.

         ¶ 10 Plutz was told by another officer that Escutia and defendant had come out of the back bedroom, where they had been sleeping when the officers arrived. Plutz spoke with defendant. Plutz introduced himself and asked if defendant would come to the police station to answer some questions. Defendant asked Plutz where he was from, and Plutz said he was from the Plainfield police department. Defendant then said, "yeah, sure." A Chicago police officer handed Plutz a cell phone and a 9-millimeter bullet that the officer found in a drawer in defendant's bedroom. Plutz put the items in his pocket.

         ¶ 11 Plutz testified that he believed the officers wanted to question defendant because he was found sleeping in a bed with Escutia, who was a person of interest. Plutz stated that the officers did not take defendant into custody because of the 9-millimeter bullet that was located in his room. Plutz testified that the first time he heard defendant's name was at the residence in Chicago. Plutz did not put defendant in handcuffs before he left nor did he physically restrain defendant in any way. Plutz did not see anyone else put defendant in handcuffs. Plutz was armed while in the residence, but he never removed his weapon from its holster. Plutz did not observe any other officers display their weapons or yell. Plutz testified that defendant was "absolutely" free to stay at the residence if he had chosen to do so.

         ¶ 12 When the officers left the residence, all the squad cars were full. The Chicago officers drove defendant to the Chicago police station where the Plainfield and Kendall County officers had parked their cars. Plutz was still in the residence when defendant got into the car with the Chicago officers. Plutz rode to the Chicago police station with several Kendall County officers. When Plutz got to the Chicago police station, defendant was not in handcuffs. Defendant got into the front passenger seat of Plutz's squad car, and Plutz drove to the Plainfield police station. Defendant was not in handcuffs while in Plutz's vehicle. Defendant did not make any statements regarding Barrios's death during the car ride. Plutz did not recall saying anything to defendant during the car ride that would have indicated that defendant was free to leave.

         ¶ 13 When they arrived at the Plainfield police department, defendant asked to use the restroom, which Plutz allowed him to do. Plutz then led defendant to a small interview room with chairs and a table. Plutz told defendant to knock on the door if he needed anything, and Plutz left the room. Plutz learned that Escutia, while she was in another officer's car being driven to Plainfield, had stated that she and defendant shot Barrios. At that point, Plutz did not believe that defendant was free to leave. Plutz eventually returned to the interview room with another detective. They led defendant to another small interview room for recording purposes. Shortly before 12 p.m. on October 29, the detectives went over defendant's Miranda rights. Defendant waived his Miranda rights and answered their questions. Defendant signed a written statement typed by Plutz after he had read the statement. The statement contained admissions regarding defendant's involvement in Barrios's murder. A videotape of defendant's communications with Plutz was entered into evidence.

         ¶ 14 Plutz testified that defendant was not arrested prior to making a statement at the Plainfield police department. Plutz stated that the officers had no reason to arrest defendant at the residence. Plutz acknowledged that he later stated in an affidavit attached to a complaint for a search warrant that a Nokia cell phone was seized as evidence when defendant was arrested. Plutz testified that the statement in his affidavit was incorrect; Plutz put the Nokia cell phone in his pocket at the residence before defendant was arrested. Plutz stated someone from the State's Attorney's office drafted the affidavit, but Plutz signed it.

         ¶ 15 On November 8, 2007, Plutz sent a fax to Escutia's cell phone company stating, "The reason we needed phone records was to locate possible offenders in a homicide that might be a threat to other individuals." Plutz testified that someone from the cell phone company asked him to phrase it that way. Plutz stated that when he initially requested Escutia's cell phone records on October 28, 2007, he believed it was possible that Escutia was an offender.

         ¶ 16 Detective Carianne Siegel of the Plainfield police department testified that she was assigned on October 28, 2007, to investigate the death of Barrios. Siegel and other officers learned that Escutia had an active order of protection against Barrios. Siegel testified that another Plainfield officer sent an "exigent circumstances request" regarding Escutia's cell phone number to Escutia's cell phone company, requesting "subscriber information" about Escutia, including her billing address.

         ¶ 17 Siegel contacted a Secret Service agent because the Secret Service has the ability to ping cell phones. Siegel told the Secret Service agent about the events leading up to the homicide, what happened at the scene, and that they were trying to locate Escutia's cell phone. Siegel, two other Plainfield officers, and several Kendall County officers went to the Chicago police station to meet the Secret Service agents. Three Chicago officers joined as well. The officers drove around Chicago for approximately one hour trying to locate the ping from Escutia's cell phone. Eventually, a representative from Escutia's cell phone company gave a Secret Service agent an alternate billing address for Escutia at a residence in Chicago.

         ¶ 18 At approximately 5:20 a.m., all the officers drove to the alternate billing address to look for Escutia. Siegel did not know whose residence it was. Three Chicago police officers, three Plainfield police officers, four Kendall County officers, and approximately four members of the Secret Service went to the residence. The three Chicago officers were in uniform, but the others were in plain clothes. While the Secret Service agents stayed outside, Siegel thought that the other 10 officers may have all entered the residence.

         ¶ 19 One of the officers knocked on the front door, and four people from inside the residence came to the door, including the homeowner and three young men. The individuals who answered the door were cooperative with the police. The residence was crowded when the officers entered; Siegel believed that there were approximately 16 people in the residence including the officers and residents. Neither the police nor the individuals inside the residence yelled or screamed during the encounter. No police officer drew a weapon inside the residence at any point. One of the members of the household consented to a search of the residence.

         ¶ 20 One of the residents told the officers that Escutia and defendant were sleeping in the residence. The officers located defendant and Escutia in a back bedroom. An officer asked Escutia if she would come to the Plainfield police department to speak with the officers, and Escutia said yes. Siegel left the residence with Escutia and Kivisto. The three of them rode in a car to the Plainfield police department. Before they arrived, Escutia told the officers that she and defendant shot Barrios.

         ¶ 21 Siegel believed defendant left the residence with the Chicago officers and was initially taken to the Chicago police station. Siegel did not overhear any Plainfield officers tell any Chicago officers that defendant was free to leave if he chose to do so. Siegel did not know whether the Chicago officers handcuffed defendant because she did not see them transport him. Siegel testified that, at the time the officers arrived at the residence, defendant was not a suspect in the murder of Barrios. Siegel stated that the officers had not developed probable cause to believe defendant was responsible for the crime.

         ¶ 22 A few days after the officers encountered defendant and Escutia at the residence, Siegel obtained a court order for the information they received from Escutia's cell phone company pursuant to the exigent circumstances request. In her application for the order, Siegel stated under oath: "At that point, officers made an exigent circumstances request with T-Mobile for above cellular phone information, which led to the arrest of Gabriela Escutia and [defendant]. Both suspects later confessed to the murder that is the subject of said homicide investigation." Siegel testified at the hearing that neither Escutia nor defendant were under arrest at the time they confessed to the murder.

         ¶ 23 Sergeant Kivisto of the Plainfield police department testified that he was involved in the investigation of Barrios's death on October 28, 2007. Kivisto and other officers investigating the case learned that Escutia had an order of protection against Barrios, and they wanted to speak to Escutia regarding Barrios's death. The officers sent an exigent circumstances request to Escutia's cell phone company to obtain her subscriber information. They did not have a court order at that time. The officers attempted to locate Escutia using the subscriber information they obtained from her cell phone company, but she was not at her residence.

         ¶ 24 Kivisto, the other Plainfield officers investigating the case, and officers from the Kendall County major crimes task force went to the Chicago police station to meet Secret Service agents to discuss tracing Escutia's cell phone. The Secret Service agents received information that Escutia's cell phone may have been pinging in the City of Chicago. Sometime after 12 a.m. on October 29 the Plainfield officers, Kendall County officers, and Secret Service agents drove around Chicago trying to locate Escutia's cell phone. Three Chicago officers were with them as well. At approximately 5 a.m., the Secret Service agents were informed by Escutia's cell phone company that Escutia had an alternative billing address in Chicago. The officers then went to the residence at the alternative billing address at approximately 5:20 a.m.

         ¶ 25 Kivisto testified that three Plainfield officers, several Kendall County officers, three Chicago officers, and approximately three Secret Service agents went to the residence. The officers identified a black Nissan vehicle parked outside the residence as being registered to Escutia. Only the Chicago officers were in uniform. The Chicago officers may have had marked police vehicles, but the other officers were in unmarked squad cars. When the officers arrived at the residence, they did not turn on their sirens or police lights. Two officers went to the back of the residence, where there was a door, due to officer safety concerns and so they could make contact with anyone exiting the residence to determine if Escutia was inside.

         ¶ 26 The remaining officers went to the front door and knocked. Two of defendant's brothers initially opened the door. The officers identified themselves and asked to enter the residence. They were permitted to enter and went inside. Kivisto believed that approximately six officers entered the residence. Kivisto spoke with defendant's mother, Maria Garcia. One of the Chicago officers acted as a translator for Kivisto, as Maria only spoke Spanish. Kivisto told Maria they wanted to speak with ...

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