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People v. Fernandez

Court of Appeals of Illinois, First District, Second Division

December 20, 2016

ARMANDO FERNANDEZ, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, Illinois. No. 09 CR 10950 Honorable Angela Munari Petrone, Judge Presiding.

          JUSTICE MASON delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Pierce concurred in the judgment and opinion.


          MASON JUSTICE.

         ¶ 1 Following a 2014 bench trial, defendant Armando Fernandez was convicted of possession of heroin with intent to deliver and eight counts of unlawful possession of a weapon by a felon, for which he was sentenced to concurrent terms of 17 and 7 years' imprisonment, respectively. Fernandez argues that his convictions should be reversed because the evidence was insufficient to prove that he constructively possessed either the heroin or the weapons and ammunition recovered. Alternatively, he maintains that the trial court erred in denying his motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), based on his challenge to the truth of the allegations in the affidavit supporting the search warrant. We agree with Fernandez's first contention and reverse his convictions.

         ¶ 2 BACKGROUND

         ¶ 3 Fernandez's convictions stemmed from the recovery of heroin, weapons, and ammunition from a single family home and detached garage at 4636 South Keating Avenue in Chicago, Illinois. The premises were searched in the early morning hours of May 16, 2009, pursuant to a search warrant. Officer George Junkovic of the Chicago police department supported the warrant with an affidavit averring that a confidential informant ("J. Doe") told him that on May 15, 2009, J. Doe went to the Keating address to meet Fernandez. According to Junkovic's affidavit recounting the information J. Doe provided, J. Doe and Fernandez went into the detached garage where Fernandez opened the hood of an inoperable van to reveal a large quantity of heroin in a plastic bag. Fernandez broke off a piece of heroin, replaced the bag under the hood, and went inside the residence with J. Doe. Once inside, J. Doe observed Fernandez package the piece of heroin in multiple knotted plastic bags and place them in a kitchen cabinet. Fernandez bragged to J. Doe that his heroin was the "best *** around" and that "everyone I sell it to loves it." J. Doe identified Fernandez and the residence from photos that Officer Junkovic showed him.

         ¶ 4 Based on this affidavit, as well as the in-court presentation of J. Doe, the court issued a warrant authorizing a search of the residence and garage, where officers recovered heroin and weapons. Fernandez was charged with one count of possession with intent to deliver more than 900 grams of heroin and eight counts of unlawful use of a weapon by a felon.

         ¶ 5 Prior to trial, Fernandez moved for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), contending that the affidavit supporting the search warrant included false statements that were necessary to the finding of probable cause. Fernandez supported his motion with his own affidavit, as well as affidavits from Elia Fernandez Bahena (Fernandez's aunt), Rosita Fernandez (Fernandez's sister), Celedonia Garcia (Fernandez's grandmother), and Elizabeth Reyes (Fernandez's cousin). According to Fernandez's and his family's affidavits, Fernandez lived at 1850 North Kedvale Avenue in Chicago and did not live at or have keys to the Keating address. Rather, his aunt and cousin lived at that address. Fernandez denied that he was present at the Keating address on May 15, and his aunt corroborated his claim, averring that she was home all day on May 15 and never saw Fernandez. The affidavits further stated that Fernandez was in Kenosha, Wisconsin visiting his sister and grandmother from the evening of May 14 until approximately 4:00 p.m. on May 15, when he left his sister's home to return to Chicago.

         ¶ 6 The trial court denied a Franks hearing after considering this evidence, finding that because the informant appeared before the judge issuing the warrant, Franks did not apply, and that the affidavits did not necessarily contradict the informant's claims in any event.

         ¶ 7 At trial, Officer Ryan Delaney testified to the events of May 15 and 16, 2009. On May 15, at approximately 6 p.m., Officer Delaney was in an unmarked car on surveillance duty near 2738 West Evergreen Avenue in Chicago. He had learned that a drug transaction would occur at that location involving a male in a gold car with Wisconsin license plates. A gold car eventually pulled up in front of him, and Officer Delaney observed a male Hispanic driver, whom he identified in court as Fernandez, exit the vehicle. Fernandez crossed the street and approached another individual while removing a softball-sized object from his pocket. Officer Delaney, having observed dozens of narcotics transactions, recognized this exchange as a drug sale and notified enforcement officers who were standing by. But when the officers approached Fernandez, he fled into a nearby apartment building. As his fellow officers pursued Fernandez, Officer Delaney went to the gold car and saw a woman inside. He ordered the woman out of the vehicle, and then noticed two bags of suspected heroin on the gearshift, which he recovered and inventoried.

         ¶ 8 Several minutes later, other officers arrived with Fernandez in custody. A search of Fernandez at the scene revealed that the softball-sized object in his possession was a large plastic bag containing smaller baggies of heroin. Fernandez was not charged with possession of this suspect heroin or the heroin recovered from his car after he was apprehended.

         ¶ 9 After Fernandez was taken into custody, he was transported to the police station, where a second search revealed a set of keys. The arresting officers read Fernandez his Miranda rights, and Fernandez then admitted to selling heroin but denied his girlfriend's involvement. Fernandez's admission was not reflected in any police reports.

         ¶ 10 At approximately 1:00 a.m. on May 16, a team of officers, including Officer Delaney, executed the search warrant for the home and garage at 4636 South Keating Avenue. The officers forced entry into the home, where they encountered a man who said he lived in the downstairs bedroom with his dog and identified himself as Fernandez's "butler." The court did not consider this hearsay testimony for the truth of the matter asserted but rather to explain the officers' decision not to arrest or question this unidentified man.

         ¶ 11 The officers' search of the home revealed a .38-caliber handgun beneath a mattress in a bedroom. Also in that bedroom, officers found a passport and insurance cards belonging to Fernandez, as well as framed pictures of Fernandez with the woman in the car. Neither the passport nor the insurance card listed an address for Fernandez. The closet held both men's and women's clothes. ...

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