People v. Balark

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          Appeal from the Circuit Court of Cook County. No. 16 CR 7930 Honorable Joan Margaret O'Brien, Judge Presiding.

          James 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.

         JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Gordon and Burke concurred in the judgment and opinion.

         OPINION

         McBRIDE, JUSTICE.

         ¶ 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

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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^[1] 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 following observation:

"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 while on

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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

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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.

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          ¶ 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 its case.

         ¶ 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 ...