People v. Cuevas

2020 IL App (1st) 163401-U

• Court: Appellate Court of Illinois
• Decided: March 23, 2020
• Docket: 1-16-3401
• Status: Unpublished

Opinion

2020 IL App (1st) 163401-U

FIRST DIVISION March 23, 2020

No. 1-16-3401

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 14 CR 12596 ) ) JOSE CUEVAS ) Honorable ) Alfredo Maldonado, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE PIERCE delivered the judgment of the court. PRESIDING JUSTICE GRIFFIN and JUSTICE HYMAN concurred in the judgment.

ORDER

¶1 Held: The trial court did not err in denying defendant's motion to suppress his statements. Cause remanded for defendant to file a motion to correct sentencing errors.

¶2 Defendant appeals from the trial court's partial denial of his motion to suppress

statements and argues that the trial court erred in denying his motion to suppress because

defendant was not informed of his Miranda rights prior to the officer’s questions. For the

following reasons, we find that the court did not err in denying defendant's motion to suppress.

However, we remand to the trial court for defendant to file a motion to address sentencing errors. 1-16-0183

¶3 BACKGROUND

¶4 Prior to trial, defendant filed a motion to suppress statements and a motion to quash his

arrest and suppress the handgun found by the police at the scene. Defendant’s first motion

sought to exclude a statement made to police on the basis that defendant had not been given his

Miranda rights before he made an inculpatory statement. Defendant’s second motion alleged

that police lacked probable cause to arrest him and recover the evidence. A hearing on both

motions was heard simultaneously. The following testimony was elicited at the hearing.

¶5 Chicago police Officer Pruger testified that on July 4, 2014, at about 10 p.m., he and his

partner Officer Cox received a call over the radio regarding a male wearing a blue shirt and

glasses firing a gun in the alley in the area of 2638 S. Avers. Officers Pruger and Cox arrived at

the location about three minutes later. Two other units also responded.

¶6 Officers spoke with a woman at the scene who was nervous and concerned for her

children. The woman stated that the person firing the gun was in the backyard of 2638 S. Avers

and pointed to the residence. The officers approached the property, looked down the gangway

and saw people moving around in the backyard. They then entered the yard through the

gangway and Officer Pruger saw three male adults and three to five children, one of which was a

small child in a car seat. Officer Pruger identified defendant as one of the adults he saw in the

backyard. Defendant was wearing a blue shirt and glasses and was holding a beer.

¶7 When Officer Pruger saw defendant, he approached him, placed him in handcuffs and

performed a protective pat down. He asked defendant whether he had been shooting a gun and

where the gun was located. Based on information provided by defendant and by defendant’s

friend to Officer Salgado, Officer Salgado recovered a handgun in the yard. The gun was a 9-

2 1-16-0183

millimeter handgun and was loaded and unsecured. Defendant was placed under arrest and

informed of his Miranda rights.

¶8 The trial court held that based on the information provided to the officers over the initial

radio call, and the information provided by the unknown woman at the scene, the officer’s entry

on the property at 2638 S. Avers was proper. In addition, the court found that the detention of

defendant based on the fact that he matched the physical description provided to the officers was

also proper. Finally, the court found that defendant’s answer to Officer Pruger’s first question,

whether he had been shooting a gun, was admissible, but suppressed defendant’s answer to

Officer Pruger’s question regarding the location of the gun.

¶9 At trial, Officer Salgado testified that he responded to a call of a Hispanic man wearing a

blue shirt and glasses shooting a gun near 2638 South Avers. When he and other officers

arrived, a woman approached Officer Pruger and had a conversation with her. After the

conversation, the officers went to the backyard of 2638 South Avers and Officer Salgado saw a

man matching the description of the offender that had been broadcast over the radio. Officer

Salgado and Officer Pruger approached defendant and Officer Pruger asked defendant whether

he had been shooting a gun. Defendant stated that he had been shooting the gun in the yard and

alley, it was the Fourth of July, he was drunk, and it was a stupid idea.

¶ 10 After defendant provided this statement, Pedro Bonilla approached the officers and spoke

with Officer Salgado in Spanish. Bonilla then escorted Officer Salgado into the backyard of

2615 S. Springfield. Bonilla pointed to an area near the garage and Officer Salgado observed a

gun on the ground. Officer Salgado recovered the .9-millimeter semi-automatic gun. It was

loaded with six live rounds. There was an empty .9-millimeter magazine lying next to the gun.

3 1-16-0183

Officer Salgado then walked back and informed Officer Pruger that he had recovered a gun.

Defendant was placed in custody.

¶ 11 The officers recovered spent shell casings form the yard at 2638 South Avers. Officer

Salgado observed that the casings were the same caliber and brand as the casings that were

loaded in the gun he recovered.

¶ 12 Defendant was Mirandized at the police station. Defendant agreed to speak to the police

and stated that he knew he messed up, he was drunk and should not have been shooting the gun.

The gun was sent to the Illinois State Police crime lab but was not tested for fingerprints or

checked to see if the recovered shell casings matched.

¶ 13 Ivette Garcia testified that she was at a relative’s house at 2640 South Avers on the night

of the incident. She and her family were having a cookout in the backyard. There were about

five adults and ten children present. At about 10 p.m., she was in the backyard when she heard

two gun shots close by, from the north side of the house.

¶ 14 Garcia went to the bathroom and came back out a few minutes later. She was standing on

the back porch and saw a man holding a gun in the yard next door. She had never seen the man

before. He was wearing a blue shirt and glasses. Garcia identified defendant in court as the man

with the gun. She testified that she looked at him for about 20 seconds and was 12 to 20 feet

away. She could see him clearly over the fence. Garcia stated that the gun was black but did not

know what caliber it was or if it was real.

¶ 15 After seeing the man with the gun, Garcia called 911 because there were a lot of children

outside in the yard. She heard one more gunshot after she called 911. Police arrived shortly

thereafter but Garcia did not speak with them.

4 1-16-0183

¶ 16 The parties stipulated that defendant had a conviction for aggravated driving under the

influence of alcohol and did not have a valid FOID card or conceal carry license.

¶ 17 The court found defendant guilty of UUWF. Defendant was sentenced to two years’

imprisonment.

¶ 18 ANALYSIS

¶ 19 Defendant argues that the trial court erred in denying his motion to suppress his statement

to police because Officer Pruger’s question regarding whether defendant had been firing a gun

amounted to a custodial interrogation in violation of Miranda. The focus of defendant’s

argument is that he was in custody at the time he answered Officer Pruger’s questions. The State

does not dispute that defendant was in custody at the time he made statement to the police but

argues that the public safety exception to Miranda applies here.

¶ 20 The standard of review applicable to a ruling on a motion to quash an arrest and suppress

evidence is twofold. The trial court's factual findings and credibility determinations are upheld

unless they are against the manifest weight of the evidence. People v. Jones, 215 Ill. 2d 261, 267-

68 (2005). A finding is against the manifest weight of the evidence only if the opposite

conclusion is clearly evident. People v. Rockey, 322 Ill. App. 832, 836 (2001). After the trial

court's factual findings are reviewed, the court's ultimate legal rulings are reviewed de novo.

Jones, 215 Ill. 2d at 268. We may consider the testimony presented at trial as well as the

testimony at the suppression hearing when reviewing the trial court's ruling on a motion to

suppress. People v. Slater, 228 Ill. 2d 137, 149 (2008).

5 1-16-0183

¶ 21 Under Miranda v. Arizona, 384 U.S. 436, 454 (1966), once a suspect is in custody, his

statements in response to custodial interrogation are inadmissible unless he has first been warned

of his constitutional rights, including the right to remain silent and to be represented by counsel

Custodial interrogation means “questioning initiated by law enforcement officers after a person

has been taken into custody or otherwise deprived of his freedom of action in any significant

way.” Id. The ultimate inquiry is whether there is a formal arrest or restraint on freedom of

movement of the degree associated with a formal arrest. California v. Beheler, 463 U.S. 1121,

1125 (1983).

¶ 22 The State argues that the public safety exception to Miranda applies here. The public

safety exception to Miranda was outlined in New York v. Quarles, 467 U.S. 649 (1984). In

Quarles, two police officers were approached by a woman who told them that she had just been

raped. She provided a description of the offender and told officers that he was armed. One of

the officers followed the offender into a nearby store. Once inside the store, the officer saw a

man matching the description provided and upon seeing the officer, the offender turned and ran

to the rear of the store. The offender was eventually detained. The officers frisked the defendant

and discovered that the offender was wearing an empty shoulder holster. After he handcuffed

the offender, the officer asked the offender where the gun was. The offender stated that “the gun

is over there,” nodding at an empty carton nearby. The officer retrieved a loaded gun from the

carton, placed the offender under arrest, and read him his Miranda rights. Id.

¶ 23 At trial, the defendant challenged his statement to police that “the gun is over there.” The

Court found that public safety exception to Miranda existed and held that a police officer may

ask limited questions to a suspect without first giving him Miranda warnings, if the officer finds

6 1-16-0183

that it is reasonably necessary “to secure [his] own safety or the safety of the public.” Id at 655.

The Court held that the defendant's statement and the gun were admissible despite the officer's

failure to provide Miranda warnings prior to questioning the defendant about the gun. Id. at 659.

The Court noted that the gun posed a danger to public safety because a customer or an employee

may have come upon the gun in the busy store. Id. at 657. The police officer asked about the

gun immediately after having apprehended the defendant and was concerned about ascertaining

the whereabouts of a weapon that he believed the defendant had just removed from the holster

and discarded in the store. The Court described the exigent circumstances under which the public

safety exception would apply as those where the police are required to make a decision “in a

matter of seconds,” “in a kaleidoscopic situation” where “spontaneity * * * is necessarily the

order of the day.” Id. at 656-58. Requiring the police to given Miranda warnings under such

circumstances would put the police in the untenable position of having to make a decision as to

whether to ask the question without the warnings and render the evidence inadmissible, or give

the warnings and possibly prevent the defendant from giving the information needed to

neutralize a volatile situation. Id. at 657–58.

¶ 24 Illinois courts have recognized the public safety exception. See People v. Williams, 173

Ill.2d 48, 77 (1996); People v. Hannah, 2013 IL App (1st) 111660, ¶ 46. In Williams, the

defendant was handcuffed and searched pursuant to an arrest warrant for a recent shooting. The

police asked the defendant whether he had any weapons “on him.” Defendant responded that he

had a gun in the attic. Williams, 173 Ill. 2d at 75.

¶ 25 The Williams court affirmed the denial of his motion to suppress, citing the public

interest exception set forth in Quarles. The court noted that “the need for answers to questions in

7 1-16-0183

a situation posing a threat to the public safety outweighs the need for the prophylactic rule

protecting the Fifth Amendment's privilege against self-incrimination.” Id. at 77 (citing Quarles,

467 U.S. at 657). C.f., Hannah, 2013 IL App (1st) 111660, ¶ 46 (finding that officer’s

questioning of the defendant did not fall within the exception but amounted to illicit

interrogation, when officer had already recovered the weapon and then asked handcuffed suspect

“whose gun is this?”).

¶ 26 Contrary to defendant’s argument that the question of whether defendant was shooting a

gun was “not necessary to protect further danger to the public,” we find that the public interest

exception to Miranda does apply in this case where Officer Pruger’s question was necessary to

protect further danger to the public. In this case, officers entered the backyard of 2638 S. Avers,

with a description of defendant, which they received over the radio, as well as information they

received from the woman they encountered in the alley. Officers identified defendant as one of

the adults in the backyard as matching the description of the person they received over the police

radio. After defendant was placed in handcuffs, Officer Pruger asked defendant whether he had

been shooting a gun. Defendant stated that he had been shooting the gun in the yard and alley, it

was the Fourth of July, he was drunk, and it was a stupid idea.

¶ 27 In the case at bar, the officers responded to the call of an active shooter in a place where

there were many people present celebrating the holiday, including small children. Based on the

reports received, there existed an immediate need to neutralize the situation, secure the area and

locate the shooter and the weapon. Officer Prugers’s question to defendant if he was the person

shooting the gun was necessary to detain the shooter and safeguard the bystanders. The public

8 1-16-0183

safety exception clearly applied here. We find that the trial court did not err in denying

defendant’s motion to suppress defendant’s initial statement to the police.

¶ 28 Defendant also argues that the trial court improperly imposed $619 in fines, fees and

costs that should be corrected. Defendant concedes that he did not challenge these assessments

in the trial court.

¶ 29 This issue governed by Illinois Supreme Court Rule 472 (eff. Mar. 1, 2019), which was

adopted after defendant filed his brief. Rule 472 sets forth the procedure in criminal cases for

correcting certain sentencing errors, including “[e]rrors in the imposition or calculation of fines,

fees, and assessments or costs,” “[e]rrors in the application of per diem credit against fines,”

“[e]rrors in the calculation of presentence custody credit,” and “[c]lerical errors in the written

sentencing order.” Ill. S. Ct. R. 472(a) (eff. Mar. 1, 2019). The rule provides that, in criminal

cases, “the circuit court retains jurisdiction to correct” the enumerated errors “at any time

following judgment ***, including during the pendency of an appeal.” Ill. S. Ct. R. 472(a) (eff.

Mar. 1, 2019). Additionally, “[n]o appeal may be taken” on the ground of any of the sentencing

errors enumerated in the rule “unless such alleged error has first been raised in the circuit court.”

Ill. S. Ct. R. 472(c) (eff. Mar. 1, 2019).

¶ 30 More recently, our supreme court amended Rule 472 by adding paragraph (e) (Ill. S. Ct.

R. 472(e) (eff. May 17, 2019)), which provides: “In all criminal cases pending on appeal as of

March 1, 2019, or appeals filed thereafter in which a party has attempted to raise sentencing

errors covered by this rule for the first time on appeal, the reviewing court shall remand to the

circuit court to allow the party to file a motion pursuant to this rule.”

¶ 31 Defendant’s appeal was pending on March 1, 2019. Thus, pursuant to the provisions of

9 1-16-0183

Rule 472, we remand to allow defendant the opportunity to file a motion to correct any

sentencing errors.

¶ 32 CONCLUSION

¶ 33 In light of the foregoing, we affirm the trial court’s denial of defendant’s motion to

suppress but remand to the trial court to allow defendant the opportunity to file a motion to

correct any sentencing errors.

¶ 34 Affirmed; remanded for defendant to file a motion for review of his sentencing claims in

the trial court.