Court of Appeals of Illinois, First District, Third Division
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
from the Circuit Court of Cook County. No. 16 CR 7930
Honorable Joan Margaret O'Brien, Judge Presiding.
E. Chadd, Patricia Mysza, and Joseph Michael Benak, of State
Appellate Defender's Office, of Chicago, for appellant.
Kimberly M. Foxx, State's Attorney, of Chicago ( Alan J.
Spellberg, Janet C. Mahoney, and David H. Iskowich, Assistant
State's Attorneys, of counsel), for the People.
McBRIDE delivered the judgment of the court, with opinion.
Justices Gordon and Burke concurred in the judgment and
1 Following a bench trial, defendant Deric Balark was found
guilty of unlawful use or possession of a weapon by a felon
(UUWF). The trial court subsequently sentenced defendant to a
term of six years in prison.
2 Defendant appeals, arguing that (1) his trial counsel was
ineffective for failing to file a motion to quash arrest and
suppress evidence because the police lacked probable cause to
arrest defendant and (2) the State failed to prove defendant
guilty of UUWF beyond a reasonable doubt.
3 In May 2016, defendant was indicted on two counts of UUWF,
four counts of aggravated unlawful use of a weapon (AUUW),
and one count of possession of cannabis. The State later
dismissed the possession of cannabis charge. Defense counsel
filed a motion to quash defendant's
arrest and suppress evidence, arguing that defendant was
arrested without a valid arrest warrant and his conduct prior
to the arrest did not constitute probable cause that he had
committed or was about to commit a crime. However,
immediately prior to trial, counsel withdrew the motion and
proceeded to a bench trial. The following evidence was
presented at defendant's February 2017 bench trial.
4 Officer Leonidas Ferreras testified that in April 2016, he
was assigned to the Fifth District tactical team with the
Chicago Police Department. On April 23, 2016, at
approximately 7 p.m., he was working with Officer
Raske and Officer Sharita Edwards. The
officers were in plain clothes with vests and duty belts and
driving an unmarked vehicle. Their duties were to patrol the
area and attempt to suppress gang and narcotic violence.
Officer Raske was driving with Officer Ferreras in the front
passenger seat and Officer Edwards in the back seat. Officer
Ferreras testified that the sun was still out and
"artificial lighting was starting to turn on."
5 At approximately 7:10 p.m., Officer Ferreras observed a red
minivan at the intersection of 107th Street and Michigan
Avenue in Chicago when the minivan disobeyed a red light. The
officers then curbed the vehicle at approximately 10519 South
Michigan Avenue. He and the other officers exited the patrol
vehicle. Officer Raske approached the driver's side of
the minivan while Officer Ferreras approached the passenger
side with Officer Edwards "slightly behind" him. As
he approached the minivan, Officer Ferreras made the
"I observed the gentleman to the right of me in the tan
shirt with a white long-sleeve undershirt place what I
believe to be a black semi-auto pistol with an extended
magazine protruding from the magazine as well into the
passenger side glove compartment."
6 Officer Ferreras identified defendant in court as the
person he observed in the passenger seat of the minivan. He
observed the firearm in defendant's hand and the extended
magazine drew his attention. He estimated that he was
approximately 5 to 10 feet away when he observed defendant
place the weapon in the glove compartment.
7 Officer Ferreras testified that there were three other
occupants in the minivan. He gave all occupants verbal
directions to exit the vehicle, and they complied. As the
occupants exited the vehicle, Officer Ferreras "noticed
that the environment was getting very hostile." He
observed members of the community coming out of their homes
and gathering on the sidewalk. He stated that this occurred
"very quickly" after the vehicle occupants exited
the vehicle. He testified that his "main mission"
was to watch the hands of the vehicle occupants as well as
ensure the officers' safety and to conduct an
investigation. The environment became "very tense"
and "members of the community started becoming very
hostile to us; yelling out profanities and very irate."
Specifically, he described an older middle-aged black female
who attempted to enter the area where the officers were
conducting their interviews. Due to the situation, Officer
Ferreras and his partners requested backup assistance and
decided to continue the investigation at the Fifth District
police station. While at the scene, a small bag of cannabis
was found on another occupant of the minivan.
8 Officer Ferreras testified that he did not alert his
partners about his observation of defendant with a weapon
the scene. He explained that due to the hostile environment,
he did not believe it was the "right or appropriate
time" to converse with his officers about the weapon in
the vehicle. He estimated that the assisting vehicles arrived
on scene in no more than 5 to 10 minutes. All of the vehicle
occupants were transported to the Fifth District. The red
minivan was driven by Officer Edwards to the Fifth District.
Officer Ferreras estimated that around 10 to 15 minutes had
passed from when the vehicle was curbed to when the vehicle
was being taken to the Fifth District.
9 Officer Ferreras did not alert Officer Edwards to the
weapon when she entered the vehicle because of the hostile
environment. He believed that the safety of the officers and
the vehicle occupants was a priority. According to the
officer, more people started coming out to the scene and
asking what the officers were doing and why. From the time
the officers arrived on the scene to when Officer Edwards
entered the vehicle, Officer Ferreras did not observe anyone
else enter the front passenger area of the vehicle.
10 Officer Ferreras rode to the Fifth District with Officer
Raske. While driving to the Fifth District, Officer Ferreras
notified Officer Raske about his observation of defendant
placing a weapon in the glove compartment. He observed
Officer Edwards park the vehicle at the police station. He
then began a search of the vehicle with Officer Raske.
Officer Ferreras searched the glove compartment and recovered
"a black sub-compact Glock 26 Gen 4, nine millimeter
with an extended magazine containing 12 live rounds." He
also recovered a bag containing "a greenish/brown
plant-like substance" that he believed to be cannabis.
While at the police station, a custodial search of defendant
was done by Officer Ferreras and Officer Raske. The officers
recovered a little over $2700 in cash.
11 On cross-examination, Officer Ferreras testified that he
believed he had his weapon drawn as he approached the minivan
and it was "fair to say" his partners also had
their weapons drawn. He could not recall the position of his
firearm. Officer Ferreras drew his weapon based on his
observations of the traffic violation and the vehicle
traveling "at a fast rate of speed on Michigan
Avenue." The officer clarified that the vehicle was not
fleeing the police.
12 Officer Ferreras stated that he directed the vehicle
occupants to put their hands in the air at the same time he
observed defendant place the weapon in the glove compartment.
When the occupants exited the vehicle, the officer conducted
a protective pat down and began his interview. However, the
officer was not able to perform his typical interview
procedures due to the hostile environment.
13 When asked why the vehicle occupants were taken to the
police station if he had not found anything, Officer Ferreras
answered as follows:
"As I mentioned, I observed your client place a handgun
onto [ sic ] the passenger side glove box. I later
learned that the driver of the vehicle did not have a
driver's license and he didn't have proof of the
lease agreement. We also had another occupant in that vehicle
who had a small portion of cannabis on his person, so the
whole totality of everything; of all of the occupants and
what we had and also the hostile environment that we were
dealing with, we felt that it was more appropriate to
continue this situation— continue this investigation
at the 5th District."
14 Officer Ferreras did not have an evidence technician take
a photograph of where the weapon was recovered because it was
not standard protocol. He could not
recall how many additional police vehicles arrived on the
scene after assistance was requested. He did not inform the
assisting officers about his observation of the weapon. He
denied that the weapon was recovered three and a half hours
after the traffic stop. Officer Ferreras estimated that the
weapon was recovered about a half an hour after the traffic
stop. He admitted that the weapon was not inventoried until
10:40 p.m. On redirect, Officer Ferreras clarified that the
first thing he did was search the vehicle and recover the
weapon. He then continued his duties and processed defendant
and the other occupants. On re-cross, Officer Ferreras
testified that he did not submit the weapon for
fingerprinting because he and Officer Raske had handled it
without gloves. According to the officer, gloves are used if
available and he did not have gloves when searching the
vehicle at the Fifth District.
15 Following the officer's testimony, the State presented
a stipulation of defendant's certified statement of
conviction for robbery on November 13, 2012. The State also
presented a stipulation that an employee from the Illinois
State Police searched the Firearm Services Bureau on June 23,
2016, for defendant's name and date of birth. Her search
indicated that defendant had never been issued a Firearm
Owner's Identification Card (FOID) or a concealed carry
license (CCL) in Illinois. The State then rested. Defendant
moved for a directed finding, which the trial court denied.
16 Defendant presented a stipulation from Officer Raske that
if he were called to testify he would testify that he never
observed a weapon on the scene. Defendant then testified on
his own behalf.
17 On April 23, 2016, defendant was in a Chrysler minivan
receiving a ride home from a friend of the family. The other
two occupants were his cousins. He was picked up at 107th
Street and Wabash Avenue. He had been in the vehicle for five
minutes when they were pulled over for a traffic stop. He was
in the passenger seat.
18 During the traffic stop, the three officers approached the
vehicle. Officer Ferreras approached the passenger side with
his gun drawn and pointing his gun toward defendant.
Defendant denied having anything in his hands while in the
vehicle or placing anything in the glove compartment. He also
denied having a gun with an extended clip and opening the
glove compartment. When Officer Ferreras came to the door,
defendant had his hands up. He put his hands up
"immediately as [the officer] approached the door."
The officer then opened the door and pulled defendant out of
the minivan. The other occupants were also pulled from the
vehicle. He was asked if there was anything in the vehicle.
Defendant testified that he told the officer he did not know
because he had just been picked up.
19 Defendant and the other occupants were then handcuffed
together at the back of the vehicle while all three officers
searched the vehicle. Defendant testified that the female
officer searched the back of the vehicle and watched them at
the same time. He stated that the officers searched the
vehicle for 5 to 10 minutes until the other police vehicles
arrived. According to defendant, he thought the officers
found cannabis on one of the individuals, but that was the
only item found. A weapon was not recovered during this
search, and he never saw a weapon recovered. Defendant
estimated that six or seven police vehicles arrived on the
scene. He was then taken to the police station. Two hours
later, a police officer asked defendant if he had a gun, and
defendant told him that he did not know anything about a gun.
20 On cross-examination, defendant testified that he had
$2700 in cash on him at the time. He had received the money
from a girlfriend, and he was going to take his children
shopping the next day. Defendant denied knowing there was
cannabis in the glove compartment. The defense then rested
21 In rebuttal, the State recalled Officer Ferreras. Officer
Ferreras testified that he and Officer Raske gave
Miranda warnings and spoke with defendant at the
police station. They asked defendant about the recovered
weapon and cannabis. Defendant acknowledged knowing about the
cannabis but denied knowing about the weapon. The officer
also asked defendant about the large amount of currency he
had on his person and defendant responded that "he has a
lot of girlfriends that give him money and that's how he
acquired his money."
22 On cross-examination, Officer Ferreras testified that
defendant was given his Miranda warnings around 11
p.m. The interview with Officer Raske occurred at that time.
A separate interview with a detective occurred later, and
Officer Ferreras was present for that interview, but the
detective asked the questions. The officer did not show the
weapon to defendant. Officer Ferreras clarified that
defendant told the officers that he knew the cannabis was in
the glove compartment but did not tell the officers that the
cannabis belonged to him.
23 In surrebuttal, defendant reopened his defense and called
Officer Edwards to testify. On April 23, 2016, she was on
duty with Officer Ferreras and Officer Raske. The officers
used the lights and the siren to curb a minivan. The minivan
pulled over approximately 45 seconds to a minute after the
lights and siren were activated. Officer Edwards was the rear
passenger of the police vehicle and did not have access to
use a "spotcam" on the minivan. Officer Edwards did
not recall if she had her weapon drawn when she exited the
vehicle nor could she recall if Officer Raske or Officer
Ferreras had their weapons drawn. Officer Raske approached on
the driver's side. She approached the passenger side of
the minivan behind Officer Ferreras. She estimated that she
was approximately five feet behind him. She did not observe
any of the occupants of the van do anything, nor could she
see if their hands were in the air. She explained that she
was further back from Officer Ferreras and the rear windows
were tinted. Officer Ferreras was closer to the vehicle than
she was. She was not close enough to see whether the
occupants in the vehicle were moving. Officer Ferreras gave
verbal commands for the occupants to raise their hands, but
she was not close enough to see if they complied. She did not
observe anyone in the vehicle open the glove compartment. The
occupants were then ordered to exit the vehicle and placed to
the rear of the vehicle. She did not know if they were
handcuffed together, but she knew at some point they were
handcuffed. She did not know how much time passed until more
officers arrived at the scene.
24 The vehicle occupants were placed in vehicles belonging to
the assisting officers. Officer Edwards did not search the
vehicle. She denied that Officer Raske and Officer Ferreras
searched the vehicle at the scene. Officer Raske and Officer
Ferreras searched the vehicle in the station parking lot
after Officer Edwards drove the vehicle to the station, but
she was not present for the search. She went into the police
station to take possession of the vehicle occupants. She was
later informed that Officer Ferreras had recovered a weapon
and illegal drugs.
25 On cross-examination, Officer Edwards described what