People v. Leon, No. 1-98-0376

1st District, January 14, 2000

SIXTH DIVISION

JUSTICE O'BRIEN delivered the opinion of the court:

A jury found defendant, Adolpho Leon, guilty of one count of possession of a controlled substance, one count of possession of a controlled substance with intent to deliver, and one count of possession of cannabis with intent to deliver. The trial court sentenced defendant to 15 years in prison. Defendant appeals, contending: (1) the trial court erred by denying his motion to suppress; and (2) his posttrial counsel provided ineffective assistance. We affirm.

At the hearing on the motion to suppress, Officer Manuel Godinez testified that on the morning of July 27, 1994, he and six or seven other police officers went to defendant's first-floor apartment to execute a search warrant. Officer Godinez knocked on the apartment door. A person inside the apartment responded, "Who is it?" Officer Godinez announced his office and told the person inside to open the door. The officers received no response, so they forced open the door and entered the apartment.

Officer Godinez testified that, upon entering the apartment, he saw defendant standing in a hallway and shortly thereafter he saw a young child seated on a sofa in the living room. Officer Godinez explained to defendant that they were executing a search warrant, and the officer asked defendant whether he had any narcotics or weapons in the apartment. Defendant then led Officer Godinez to the bathroom, where the officer recovered a quantity of cocaine. Officer Godinez next asked defendant, "Where is the gun at?" Defendant responded, "It's in the bedroom." Officer Godinez walked to the bedroom, where he saw defendant's wife, Marisol. Marisol was subsequently "taken" into the living room and seated with her child on the couch. Officer Godinez searched the bedroom closet and found a loaded, semi-automatic pistol. Officer Godinez placed defendant under arrest and read him his Miranda rights.

Officer Godinez testified that he searched defendant and discovered a set of keys in defendant's pants pocket. The smallest key was about half the size of the other keys and appeared to be for some sort of locked container. Officer Godinez was unable to find anything in the apartment that the key fit, so he approached Marisol in the living room, "fanned" the key ring, and asked her what the small key was for. Marisol responded that the key fit their storage locker downstairs. Marisol further told the officer that the storage locker contained clothes and she gave him permission to "go look" in the storage locker. Officer Godinez testified that he went downstairs to the basement, where he saw a row of storage lockers. Officer Godinez eventually used the key to open locker number 10. Inside the locker was a yellow pail containing six brown, taped packages that Officer Godinez believed to be kilograms of cocaine. Officer Godinez also recovered four large plastic bags from the locker, all containing a "crushed green plant."

During Officer Godinez's testimony, the State showed him some photographs of the storage lockers taken by a fellow police officer about 10 minutes after the narcotics were recovered. In those photographs, the storage lockers appear undamaged. Officer Godinez testified that the photographs accurately depicted the condition of the storage lockers on July 27, 1994. Officer Godinez was also shown defense photographs of the storage lockers. In those photographs, the hinges on some of the lockers, including locker number 10, appeared to be damaged. Officer Godinez testified that those defense photographs did not accurately reflect the condition of the storage lockers on July 27, 1994.

Marisol Leon testified that at approximately 9 a.m. on July 27, 1994, she and her husband were awakened by the sound of a loud "bang" on the front door of their apartment. Defendant got up from bed and walked to the doorway of their bedroom. Suddenly, four or five police officers entered their bedroom, pushed defendant against a wall, and pointed guns at his head. The officers then took defendant out of the room.

Marisol testified that, a few moments later, she joined defendant and their son in the living room. While Marisol was sitting in the living room, she heard the officers searching their bedroom. After the police left, Marisol went downstairs and saw that the storage lockers there had been damaged. Marisol testified that at no time did a police officer show her a key or ask her if they could search the basement or storage locker.

At the end of the testimony on the motion to suppress, the trial court denied the motion, ruling that Marisol had voluntarily consented to the search of the storage locker.

At trial, Officer Godinez reiterated his testimony at the suppression hearing concerning his discovery of narcotics in defendant's apartment and in the storage locker. Officer Godinez also testified that after recovering the narcotics and cannabis from the storage locker, he returned upstairs. As the officer approached his sergeant, defendant told him, "She didn't even know that was down there."

Defendant testified at trial that at approximately 10 a.m. on July 27, 1994, he was in bed with his wife when he heard a loud noise. Defendant got out of bed and encountered police officers, who grabbed him and sat him in the living room. Shortly thereafter, his wife was brought into the living room with him.

Defendant testified that he remained in the living room the entire two-hour time period that the officers searched the apartment; he denied leading any police officer to find evidence. Several times during the search, Officer Godinez came into the living room and showed him things including money from the kitchen cabinet and cocaine he had found in the bathroom.

Defendant testified that Officer Godinez also showed him a yellow bucket. Defendant told the officer that he didn't know to whom it belonged. Defendant denied having any narcotics or contraband in his storage locker.

Richard Stopka, defendant's original defense attorney, testified that on July 27, 1994, he was asked to represent defendant. Stopka went to defendant's apartment building and inspected his first-floor apartment and the basement storage area. Stopka testified that several of the storage lockers appeared to have been broken into.

Both parties stipulated that the contraband recovered from defendant's apartment contained .55 grams of cocaine. The contraband recovered from the storage locker contained 1,425.9 grams of cannabis and 6,032.6 grams of cocaine.

The jury found defendant guilty of one count of possession of a controlled substance, one count of possession of a controlled substance with intent to deliver, and one count of possession of cannabis with intent to deliver. The trial court sentenced defendant to 15 years in prison. Defendant filed this timely appeal following the denial of his posttrial motion.

First, defendant argues the trial court erred in denying his motion to suppress because Officer Godinez failed to tell Marisol that she was under no obligation to answer his question about the key he had found in defendant's pocket. In support, defendant notes that Officer Godinez first searched the apartment and determined that the key did not fit any lock therein. Therefore, defendant contends that by the time Officer Godinez questioned Marisol about the key, the search of the apartment was completed and the officer's questioning of Marisol represented an intent to extend his search beyond the apartment, that is, beyond the scope of the search warrant. Defendant argues that in order to so extend the scope of the search, Officer Godinez was required to inform Marisol that the initial search was completed and that she was under no obligation to answer his question about the key or otherwise consent to another search.

Defendant cites no Illinois case law which supports his argument. However, defendant does cite a case that was pending in the Illinois Supreme Court at the time he filed his brief in this court, People v. Brownlee, No. 84739. Defendant anticipated that Brownlee would hold that the Illinois Constitution requires police officers to provide notification of the termination of the initial police action before seeking consent for a further search. Defendant argued that should the supreme court so hold, then Officer Godinez's failure to inform Marisol about the termination of his initial search necessitates that the drugs seized as a result of Marisol's uninformed consent must be suppressed.

On June 17, 1999, the supreme court issued its opinion in Brownlee. See People v. Brownlee, 186 Ill. 2d 501 (1999). The supreme court did not address whether the Illinois Constitution requires notification of the termination of an initial police action before seeking consent for a further search. Accordingly, defendant's argument necessarily fails, as it is premised solely on an anticipated holding in Brownlee that never materialized and defendant cites no other additional Illinois authority.

Next, defendant argues that the trial court erred in denying his motion to suppress because Officer Godinez's questioning of Marisol constituted a "search [of her] mind for evidence of a crime without probable cause [and] without reasonable suspicion" and thus constituted an unreasonable search and seizure under the United States Constitution and Illinois Constitution. Since neither the facts nor the credibility of the witnesses is questioned, the issue of the constitutional reasonableness of the search is a legal one, which we consider de novo. People v. Foskey, 136 Ill. 2d 66, 76 (1990).

First, we address defendant's argument under the United States Constitution. In support of his argument, defendant cites Arizona v. Hicks, 480 U.S. 321, 94 L. Ed. 2d 347, 107 S. Ct. 1149 (1987) . In Hicks, the police entered defendant's apartment to investigate a shooting. Hicks, 480 U.S. at 323, 94 L. Ed. 2d at 353, 107 S. Ct. at 1152. One of the officers noted expensive stereo equipment that seemed out of place in the "squalid" apartment. Hicks, 480 U.S. at 323, 94 L. Ed. 2d at 353, 107 S. Ct. at 1152. The officer moved the stereo equipment in order to record the serial numbers for further investigation. Hicks, 480 U.S. at 323, 94 L. Ed. 2d at 353, 107 S. Ct. at 1152. That investigation revealed that some of the serial numbers matched those on stereo equipment taken in an armed robbery. Hicks, 480 U.S. at 323, 94 L. Ed. 353, 107 S. Ct. at 1152. Officers then obtained a warrant to reenter defendant's apartment and seize the stolen property. Hicks, 480 U.S. at 323-24, 94 L. Ed. 2d at 353, 107 S. Ct. at 1152. Defendant was subsequently indicted for the robbery. Hicks, 480 U.S. at 324, 94 L. Ed. 2d at 353, 107 S. Ct. at 1152.

The trial court granted defendant's motion to suppress the evidence that had been seized. Hicks, 480 U.S. at 324, 94 L. Ed. 2d at 353, 107 S. Ct. at 1152. On appeal, the United States Supreme Court held that the act of moving the stereo equipment constituted a search unrelated to the search for the shooter, victims, and weapons that was the lawful objective of the entry into the apartment. Hicks, 480 U.S. at 324-25, 94 L. Ed. 2d at 353-54, 107 S. Ct. at 1152. The court further held that defendant's fourth amendment rights were violated because no probable cause or exigent circumstances existed to justify the search. Hicks, 480 U.S. at 325-29, 94 L. Ed. 2d at 354-57, 107 S. Ct. at 1153-55.

In the present case, defendant contends that since the officers had completed their search of the apartment prior to questioning Marisol about the key, the State was required, pursuant to Hicks, to show probable cause to search for criminality connected to the key.

We reject defendant's arguments that the State was required to show that the officer had probable cause or an individualized suspicion prior to questioning Marisol about the key. In United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980), Justice Stewart stated in a section of the opinion which was joined by Justice Rehnquist:

"We adhere to the view that a person is 'seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but 'to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.' [Citation.] As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.

***

We conclude that a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Mendenhall, 446 U.S. at 553-54, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877 (opinion of Stewart, J., joined by Rehnquist, J.).

Illinois courts have adopted the Mendenhall analysis. See People v. Murray, 137 Ill. 2d 382, 388-90 (1990). Applying Mendenhall to the present case, we find, for the reasons that follow, that Officer Godinez's questioning of Marisol was not a seizure under the fourth amendment and thus did not require any particular or objective justification.

Factors to consider when determining whether a person was seized are: the threatening presence of several police officers; the display of weapons by an officer; physical touching; tone of voice indicating compliance with arrest might be compelled; and formal declaration of arrest or routine practices associated with arrest such as searching, booking, handcuffing, fingerprinting and photographing. See Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877; People v. Myrick, 274 Ill. App. 3d 983, 988 (1995). The test does not focus on any one action taken by the police but instead focuses on the totality of the circumstances that led to a coercive effect by the police. Myrick, 274 Ill. App. 3d at 988.

Applying the foregoing factors to the case at bar, we note that although there were multiple officers searching the apartment, Officer Godinez was the only officer in the living room with Marisol at the time he questioned her. Officer Godinez did not display any weapons when talking with Marisol, nor did he touch her or make any formal declaration of arrest or routine practices associated with arrest. There was no testimony that his tone of voice when questioning her indicated compliance with arrest might be compelled.

During oral argument on this case, there was discussion about the officers' mode of entry into the apartment, i.e., their use of a sledgehammer to force open the door. Forced entry into a dwelling is a factor to consider when determining whether a seizure has occurred. However, it is not dispositive, especially where, as here, the officer clearly announces that his purpose in entering the apartment is pursuant to a search warrant (as opposed to an arrest warrant), and where other indicia of a seizure, such as the presence of weapons, touching, coercive tone of voice, or routine practices associated with arrest are missing.

Accordingly, the totality of the circumstances indicates that Officer Godinez's questioning of Marisol did not constitute a seizure; therefore, no particular or objective justifications were required under the fourth amendment prior to talking with her.

Next, we address defendant's argument that Officer Godinez's questioning of Marisol was a violation of article I, section 6, of the Illinois Constitution (hereinafter referred to as section 6). Section 6 provides:

"The people shall have the right to be secure in their persons, houses, papers, and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means." Ill. Const. 1970, art. I,