People v. Loewenstein

SUPREME COURT CASES

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State: Illinois

Court: 4th District Appellate

Docket No: 4-05-0692 Rel

Case Date: 02/15/2008

Preview:NO. 4-05-0692 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JEREMY L. LOEWENSTEIN, Defendant-Appellee.

Filed 2/15/08

) Appeal from ) Circuit Court of ) Vermilion County ) No. 05CF108 ) ) Honorable ) Michael D. Clary, ) Judge Presiding. ______________________________________________________________ JUSTICE TURNER delivered the opinion of the court: In February 2005, the State charged defendant, Jeremy L. Loewenstein, with single counts of aggravated discharge of a firearm and unlawful possession of a weapon by a felon. In July

2005, defendant filed a motion to suppress statements, which the trial court granted in part and denied in part. On appeal, the State argues the trial court erred in suppressing certain statements made by defendant to the police. We reverse and remand for further proceedings. I. BACKGROUND In February 2005, the State charged defendant Loewenstein and codefendant Donald Huerta by information with one count of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2004)), alleging defendants knowingly discharged a firearm in the direction of another person. The State also charged

defendants with one count of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2004)), alleging defendants, both of whom had been convicted of a felony, knowingly possessed

a handgun.

Defendant Loewenstein pleaded not guilty. In May 2005, defendant filed a motion to suppress

evidence, which the trial court denied.

In July 2005, defendant

filed a motion to suppress certain statements made to the police. Defendant stated he was taken into custody on February 20, 2005, and interrogated by police officers. In response to questions, Defendant

defendant allegedly gave incriminating statements.

claimed the statements were involuntary and made without a knowing and intelligent waiver of his right to remain silent and his right to an attorney as he was not advised of those rights prior to interrogation. Defendant also claimed statements made

on February 21, 2005, should be suppressed as having been given as a result of the initial improper interrogation, thereby amounting to fruit of the poisonous tree. In August 2005, the trial court conducted a hearing on the motion to suppress statements. Danville police detective

Bruce Stark testified he obtained defendant's consent to search a safe in defendant's residence at 12:25 p.m. on February 20, 2005. Stark questioned defendant about the contents of the safe but did not read him any Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)). Stark's police

report, admitted as defendant's exhibit No. 3, summarized the interview as follows: "The reporting officer[,] Bruce Stark[,] used a Danville Police Dept. consent[-]to[-] search form with Jeremy Loewenstein. - 2 Det.

Stark filled out the form and it was read to Jeremy. He was asked if he understood the Det. Stark asked

form and he stated 'Yes.'

Jeremy for consent to [a] search of a blue Sentry safe that was located in his bedroom. Jeremy stated the safe belonged to a guy named Ivan who used to stay with him. Ivan

got out of prison and moved in with Jeremy. Jeremy said he forgot what Ivan's last name was even with Ivan living with him. Jeremy

stated Ivan got the safe to keep his personal papers in it. When Ivan moved out a couple

of months ago, the safe was left at Jeremy's. Jeremy stated Lupe Perez came to his house and he had a [9-millimeter] handgun that didn't work. Lupe Perez kept the maga-

zine and Jeremy said he put the gun in the safe. Jeremy was asked if he knew he was a

convicted felon and he[,] Jeremy[,] said 'Yes.' Jeremy said he was going to take the

gun to a man's house on Perrysville Road that works on guns in his garage. Jeremy said he Jeremy

just never got around to doing that.

said that his wife Nicole is also a convicted felon, but she had no idea what was in the safe. - 3 -

Jeremy said in the blue Sentry safe was a blue steel [9-millimeter] handgun and some extra bullets. Jeremy said he doesn't know

where the handgun came from other than Lupe Perez brought it to him to try and fix. Jeremy said the gun hasn't been fired and there is no magazine at his house for the gun. Jeremy admitted to knowing the gun was there before the safe was open. Jeremy said

that Ivan left the safe there and abandoned it and he began using it. Jeremy said there

was nothing of Ivan's still in the safe and Ivan moved out in December of 2004. The blue Sentry safe was put on evidence tag [No.] 95613. See completed consent[-]to[-]search form for the blue Sentry safe." Detective Stark stated he and Detective Gene Woodard then met with defendant at approximately 12:45 p.m. on February 20, 2005, in an interview room at the public safety building. Stark advised defendant of his Miranda rights and presented him with a waiver-of-rights form. Defendant indicated he understood

his rights, put his initials next to the listed rights, and signed the waiver form. During the 30-minute interview, Stark

stated he did not threaten defendant and asked him about a - 4 -

shooting involving Roy Delarosa. present at the shooting.

Defendant stated he was not

On February 21, 2005, Stark stated he and Detective Keith Garrett interviewed defendant at around 11:14 a.m. at the public safety building. Officers had by this time opened the The officers presented defendant

safe and retrieved the handgun.

with a waiver-of-rights form, and defendant initialed and signed the form indicating he understood his rights. Stark stated he

did not threaten defendant or promise him anything during the 30minute interview. Stark's police report, admitted as People's

exhibit No. 3, summarized the interview as follows: "The reporting officers[,] Bruce Stark & Keith Garrett[,] met with Jeremy Loewenstein and he was asked about the handgun. Jeremy

was asked where the clip-magazine was for the [9-millimeter] handgun. Jeremy stated Lupe Jeremy

Perez has it, as the handgun was his.

said that he was holding the gun for Lupe Perez and he was to take it to have it repaired. Jeremy Loewenstein said he did forget to tell Det. Stark one thing yesterday and that was Nicole[,] his wife[,] when she came home[,] answered the door when someone knocked. Jeremy said that Nicole said it was

Hugo Torres, Greg Acuna, and one guy she - 5 -

didn't know.

She told them Jeremy was in bed

sick[,] and they never came in. Jeremy Loewenstein also said he told the officer that the guy living with him was possibly Ivan Brown, but since he has thought overnight, he wasn't sure of the last name and he didn't want to tell the officer the wrong name. He still said the guy[']s first

name was Ivan and they called him 'Little Man' in prison and he was paroled to Jeremy's house, but Jeremy couldn't remember Ivan's last name. Jeremy said *** he did in fact handle the gun that was in the blue safe, which the officers took from his home." During arguments on the motion, the State conceded the statements given during the first interview on February 20, 2005, should be suppressed because of the officer's failure to advise defendant of his Miranda rights. first statement. The trial court suppressed the

The court declined to suppress the second

interview of 12:45 p.m. on February 20, 2005, finding it did not concern the contents of the safe. The court found no evidence

that any of the statements were not voluntarily given and also found no showing of any threats, force, or coercion. As to the third interview, the trial court stated as follows: - 6 -

"And then we have the conversation February 21st at 11:14 a.m., that's also sought to be suppressed. And to a very great extent

it would appear that that conversation covers much of the same ground that was volunteered by the defendant when he was asked for a consent to search the safe. He talks about

there not being a clip for the handgun, that it is a handgun, where he got [it], it was kind of covered both times. He was

Mirandized on February 21st just before that conversation. It's the next day, so there's This

been about 24 hours passage of time.

conversation obviously has connections to the first conversation on February 20th before Miranda and I think it is linked to it. There has been a break, there's been a passage of time, a new Miranda, but I think the--the law in the past has covered those types of situations and I don't think that the law allows in an improper situation where police find things out without giving Miranda to then go back and remedy or try to cure the situation by [M]irandizing and questioning. To me it's obvious the police officers were not improperly trying to solicit information - 7 -

from Mr. Loewenstein when they spoke with him to get the consent to search, but there was a conversation, and then the next day a continuation of that conversation, and as a result of the topics covered both times, the [m]otion to [s]uppress February 21st, 11:14 a.m., conversation is gonna be allowed for the reasons stated." The State filed a certificate of substantial impairment and appealed the court's ruling pursuant to Supreme Court Rule 604(a) (see 210 Ill. 2d R. 604(a)). II. ANALYSIS A. Burden of Proof and Standard of Review "Where a defendant challenges the admissibility of his confession through a motion to suppress, the State has the burden of proving the confession was voluntary by a preponderance of the evidence." People v. Braggs, 209 Ill. 2d 492, 505, 810 N.E.2d On

472, 481 (2003), citing 725 ILCS 5/114-11(d) (West 2000). review of a trial court's ruling on the voluntariness of a confession, the court's factual findings are accorded great deference and will be reversed only if they are against the manifest weight of the evidence. 727 N.E.2d 1003, 1010 (2000).

In re G.O., 191 Ill. 2d 37, 50,

However, the court's ruling on the

ultimate question of whether the confession was voluntary is entitled to de novo review. People v. Morgan, 197 Ill. 2d 404,

437, 758 N.E.2d 813, 832 (2001). - 8 -

B. The Admissibility of the Second Confession In the case sub judice, Detective Stark did not read defendant his Miranda rights prior to his first confession on February 20, 2005, that he possessed a handgun. A short time

later, Stark administered the Miranda warnings, but defendant made no incriminating statements. The next day, Stark gave the

Miranda warnings before defendant admitted possessing the handgun. The State does not argue the trial court erred in suppressing defendant's first inculpatory statement. Instead,

the State argues the court erred in suppressing the second confession of February 21, 2005. Defendant argues the "question

first-warn later" interrogation technique utilized here requires suppression of the second confession. The fifth amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const., amend. V.

Similarly, the Illinois Constitution provides that "[n]o person shall be compelled in a criminal case to give evidence against himself." Ill. Const. 1970, art. I,

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