People v. Bui

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People v. Bui

State: Illinois

Court: 1st District Appellate

Docket No: 1-05-3880 Rel

Case Date: 03/21/2008

Preview:Sixth Division March 21, 2008 No. 1-05-3880 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DUOC BUI, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

04 CR 25950

Honorable Marjorie Laws, Judge Presiding.

PRESIDING JUSTICE McBRIDE delivered the opinion of the court: Following a jury trial, defendant, Duoc Bui, was found guilty of two counts of possession of a controlled substance with intent to deliver and sentenced to concurrent terms of 15 years' imprisonment. On appeal, defendant contends that: (1) the search warrant was unconstitutional; (2) police exceeded the scope of the warrant; (3) the State failed to prove him guilty beyond a reasonable doubt; (4) he was denied a fair trial by the improper admission of evidence; (5) the trial court abused its discretion by refusing to tender an Illinois Pattern Jury Instruction; and (6) one of his convictions must be vacated because it violates the one-act, one-crime rule. For the reasons that follow, we affirm. On September 30, 2004, defendant was arrested and charged by indictment with one count of possession of 1,500 or more tablets of methylenedioxymethamphetamine (MDMA) with intent to deliver (720 ILCS 570/401(a)(7.5)(D) (West 2004)), possession of 900 or more grams of methamphetamine with intent to deliver (720 ILCS 570/401(a)(6.5)(D) (West 2004)), and possession of 15 or more grams but less than 100 grams of cocaine with intent to deliver (720

1-05-3880 ILCS 570/401(a)(2)(A) (West 2004)). Prior to trial, defendant filed a motion to suppress evidence, alleging that police did not "knock and announce" their office before entering his home and executing a search warrant. Defendant's motion was denied. The following evidence was presented at defendant's trial. On September 29, 2004, Chicago police officer Judith Solava, a member of the police department's narcotics division and package interdiction team, discovered a suspicious package while she was inspecting packages at a United Parcel Service (UPS) location in Chicago, Illinois. The package consisted of a brown box with "heavy" duct tape over all of the seams, and it was addressed to defendant at 11213 South Michigan Avenue, Chicago, Illinois, 60628. The return address label indicated that the package was from "John Tang" in California and listed a corresponding phone number. Officer Solava learned that there was no person by the name of "John Tang" listed at that return address or telephone number. According to Officer Solava, she suspected the package contained narcotics because of this "false sender" information, because the package was sent from a "border state," and because the seams of the package were covered entirely with tape. Officer Solava arranged the package among several others that she did not suspect contained narcotics and then called for the packages to be inspected by a canine handler. Officer Steve Martinez, a canine handler, responded to Officer Solava's call. He gave his dog the command, "fetch dope," and then led the dog past all of the packages. When the dog came to the parcel addressed to defendant, it became agitated, excited, and started to bite and scratch at the parcel. The dog's behavior indicated that the package contained narcotics. Officer Solava contacted another member of the postal interdiction team, Officer Carl

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1-05-3880 Bator, and informed him of the events surrounding the package. Officer Bator went to the address listed on the package and discovered that it belonged to a "Super Nails" salon. He relayed this information to Officer Solava. Officer Solova then obtained a search warrant to open the package and inspect its contents. The package contained a large dietary supplement container. The container did not appear to be factory sealed, but instead was sealed with what appeared to be the same silver tape that was used on the outside of the parcel. Inside the container and buried with the supplement powder, officers found five plastic bags containing pink tablets. A field test performed on one of the tablets tested positive for MDMA, or "ecstacy." Officers then arranged to make a "controlled delivery" of the package. Officer Bator obtained a "delivery" search warrant which authorized police to search "Duoc Bui or anyone taking control of the UPS Parcel *** and the location of 11213 S. Michigan Avenue *** and/or any other location that the parcel is accepted into the State of Illinois." The warrant further indicated that the parcel would be delivered by a member of the interdiction team posing as a private parcel courier and that the search warrant would only be executed if the parcel was accepted. Finally, Officer Bator obtained permission to place an electronic signaling device inside the package. Testimony at trial established that the officers executing the warrant each had a monitor for the signaling device, which would produce various signals indicating when the package was stationary, when it was being moved, and when it had been opened. In the complaint for the search warrant, Officer Bator reiterated the circumstances under which the package was discovered and set forth the manner in which the controlled delivery

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1-05-3880 would be made. According to Officer Bator, a nail salon was located at the delivery address listed on the package, and no one with defendant's name resided at that address or used that addresse as his or her residential address for an Illinois state driver's license. Officer Bator further stated that he had over 18 years of experience as a police officer and had participated in "hundreds" of postal interdiction search warrants. That experience had demonstrated to Officer Bator that, although the delivery name and address were stated on the package, narcotics traffickers could move the parcel to another location or intercept it from the courier on the street and place it into a location other than that listed on the address label. Accordingly, Officer Bator requested that the warrant allow police to search any location where the package was accepted. After obtaining the warrant, officers placed the narcotics back into the supplement bottle, which was then resealed, and placed the monitoring device inside the package and resealed it to resemble the original packaging. On September 30, 2004, at approximately 3 p.m., Officer Bator, dressed as a UPS courier, delivered the package to a woman inside the nail salon. The woman signed for the package and Officer Bator placed it on the counter. In the meantime, the other undercover officerss were in unmarked squad cars in the vicinity of the salon. The officers then waited for approximately four hours but detected no movement of the package through the signaling device.1 At about 7 p.m., a vehicle arrived and parked across the street from the salon. A man, later identified as defendant, exited the vehicle and entered the salon. Approximately five minutes later, the signaling devices indicated that the package was

According to Officer Solava, police did not execute the warrant and search the salon during this time because the package showed no movement and had not been opened. Officer Solova testified that had the package been opened, police would have executed the warrant. 4

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1-05-3880 being moved and officers observed defendant exit the salon and return to his vehicle carrying the unopened package. Defendant placed the package in the backseat of his vehicle and drove away. Officers followed defendant as he drove to the area of 5100 North Broadway Street in Chicago, where he picked up a female passenger. Defendant then drove to a house located at 6546 North Campbell Street, where he exited the vehicle, retrieved the package from the rear seat, and entered the house. The female passenger entered the front seat of the vehicle and drove away. Approximately five minutes later, the officers were alerted through the tracking devices that the package had been opened. Several minutes later, officers were in position to execute the search warrant. Officer Solava positioned herself in the gangway to ensure that no one exited the building while other officers entered the front door. Officers Bator and two other officers positioned themselves at the front door. Officer Bator knocked on the door approximately six times, each time announcing "search warrant, police, search warrant." Approximately 30 seconds later, when the knocks went unanswered, the officers broke down the door and entered the house. Officer Bator was the first to enter and he proceeded immediately down the stairs to the basement because he heard noises coming from that area. When he reached the basement, he saw four people and yelled, "[W]here is the guy with the box?" Officer Bator then observed defendant exiting a bedroom. He ordered defendant to the floor and another officer placed him in handcuffs. Officer Bator entered the bedroom that defendant had just left and saw the UPS package lying open on the floor. The supplement bottle was opened and outside of the package, and Officer Bator could see the pink pills inside the bottle. He also observed an open suitcase on the

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1-05-3880 floor, in which there was a safe that was ajar and a black bag. Inside the safe were a number of small plastic bags containing white powder. The black bag contained a digital gram scale and a number of small plastic zip-lock bags.2 During this time, Officer Solava had found a women in an upstairs bedroom and brought her to the basement. When she entered the basement, four people were sitting on a sofa in a recreation area and defendant was handcuffed and being helped off of the floor by an officer. Officer Solava advised defendant of his Miranda rights, which defendant indicated that he understood. Officer Bator then asked defendant if the room he had just exited was his bedroom. Defendant "nodded" toward that room and said, "there." The officers reentered the bedroom and conducted a more detailed search. Over defense counsel's objection, Officer Bator testified that during that search he found a box of bullets and a magazine clip inside the ceiling panels of defendant's bedroom.3 Officer Solava then entered the bedroom to inventory the evidence that had been found. She made essentially the same observations as to the items in the bedroom as had been made by Officer Bator, and added that the supplement bottle had been opened and that its contents were "spilled out on the floor." Police inventoried the narcotics and paraphernalia as well as $103 that was found on defendant. Officer Bator estimated that the street value of the pink pills was $125,000.

Officer Solava testified that, based upon her experience, items such as the scale and bags were used to package narcotics. Officer Solava, who was called as a witness prior to Officer Bator, had previously testified to the discovery of the bullets and magazine clip without objection from defendant. 6
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1-05-3880 The parties entered into a stipulation regarding the chemical composition of the pink tablets contained in the bottle of dietary supplement. They stipulated that Penny Evans, a forensic chemist with the Illinois State Police crime lab, would testify that she received and tested 4,997 pink tablets. The tablets tested positive for the presence of MDMA and weighed 1143.7 grams. Evans would further testify that the contents of the 4,997 tablets tested positive for the presence of methamphetamine. Finally, Evans would testify that she received 17 plastic bags containing a white, chunky substance and that the substance tested positive for the presence of cocaine and weighed 20 grams. Defendant called Michael Pham to testify on his behalf. Pham testified that on September 30, 2004, he lived in the seven-bedroom house on Campbell Street with his parents, brothers and sisters, and defendant. The family and defendant had lived in the house for about one week prior to September 30, 2004. Defendant lived in one of the three bedrooms located in the basement. One of Pham's brothers and sisters lived in each of the other two downstairs bedrooms. Defendant was not related to the family, but he worked in the nail salon that was owned by Pham's parents. Pham was alone in his upstairs bedroom on the day in question when he heard the doorbell ring. He opened the door and saw defendant holding the UPS package. Defendant entered the house and went "straight to the basement," and Pham returned to his bedroom. Approximately five minutes later, Pham heard a loud bang and within seconds police entered his bedroom and directed him to the basement. The jury found defendant guilty of possession of methylenedioxymethamphetamine with

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1-05-3880 intent to deliver and possession of methamphetamine with intent to deliver, but not guilty of possession of cocaine with intent to deliver. The trial court sentenced defendant to concurrent terms of 15 years' imprisonment. This appeal followed. Defendant first contends that the warrant employed by the police in this case was unconstitutional. The fourth amendment of the United States Constitution provides, in relevant part, that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const., amend IV. Likewise, section 6 of article I of the Illinois Constitution states, "No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized." Ill. Const. 1970, art. I,

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