People v. Sawczenko

535 N.E.2d 1105, 180 Ill. App. 3d 406, 129 Ill. Dec. 340, 1989 Ill. App. LEXIS 270
CourtAppellate Court of Illinois
DecidedMarch 9, 1989
Docket1-86-3272
StatusPublished
Cited by7 cases

This text of 535 N.E.2d 1105 (People v. Sawczenko) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Sawczenko, 535 N.E.2d 1105, 180 Ill. App. 3d 406, 129 Ill. Dec. 340, 1989 Ill. App. LEXIS 270 (Ill. Ct. App. 1989).

Opinion

JUSTICE LINN

delivered the opinion of the court:

Following a jury trial, defendant, Stephen Sawczenko, was convicted of residential burglary and sentenced to 12 years in the Illinois Department of Corrections. Defendant raises three issues on appeal: (1) whether the trial court erred when it denied his motion to suppress evidence; (2) whether comments made by the State during its closing argument were prejudicial so as to deny him a fair trial; and (3) whether the trial court abused its discretion in sentencing him to 12 years’ imprisonment. We affirm.

Before trial, defendant filed a motion to suppress evidence seized at 1334 N. Kildare Avenue in Chicago on September 20, 1985. Defendant argued that the search violated his fourth amendment rights because, while it was conducted pursuant to defendant’s arrest, the arrest was a pretext for the search. At the hearing on the motion, two police officers who were involved with the arrest testified, Detective James Baraniak (Baraniak) and Detective Richard Heinrich (Heinrich). Baraniak testified that he, Heinrich, Detective Silich (Silich) and Detective Perrington were investigating defendant in connection with an August 1985 residential burglary at 6201 N. Kilpatrick. Pursuant to that investigation an arrest warrant for defendant was issued on September 5. Attempts to arrest defendant at his last known address were unsuccessful because they were unable to locate him at that address. Baraniak testified that between September 17 and September 20 he and the other three detectives, whose names were also on the arrest warrant, saw defendant approximately 10 times, but they were unable to arrest defendant on any of those occasions because, in each instance, he was seen in a moving vehicle which they tried to follow but which they lost in traffic each time.

On the morning of September 20, the detectives received an anonymous telephone call informing them that defendant’s car was parked at 1334 N. Kildare. The detectives drove to that location and staked out defendant’s car from about 9 a.m. until 1 p.m. When they saw a child on the street and they asked him if he knew if defendant lived in the area, the child pointed out the apartment where defendant’s father lived. Baraniak testified that he and Heinrich went to the back entrance of the building and Silich and Perrington went to the front. When he and Heinrich arrived at the back door of the apartment, he looked through a hole in the door and he observed defendant, in his underwear, come out of the bedroom, walk to the living room window, look out and then return to the bedroom. At the same time, Silich was knocking on the front door and ringing the bell to the apartment. Baraniak knocked on the back door several times, identified himself and informed defendant that he had a warrant for defendant’s arrest. When defendant refused to open the door, Baraniak took a hammer that he found lying on the back porch and broke the lock on the door. The door led to the kitchen and the bedroom was off of the kitchen. When Baraniak entered the apartment, he saw defendant standing in the kitchen near the door leading to the bedroom. The door was open. Defendant was placed under arrest. Baraniak testified that while standing in the kitchen, he saw a gun under the bed in the bedroom, but that he thought that Heinrich saw the gun first and then pointed it out to him. Because defendant wanted to put clothes on, the detectives accompanied him to the bedroom, where they saw a duffel bag with an “Eddie Bauer” label that met the description of one of the items that had been taken during the burglary. At this point we note that the trial transcript revealed a different explanation of the circumstances leading to the seizure of the duffel bag during defendant’s arrest. At trial, Baraniak testified that he first saw the duffel bag when he was arresting defendant. He stated that defendant was standing in the kitchen near an open door that led to a bedroom. When Baraniak looked through the open doorway, he saw the Eddie Bauer bag. He then testified that the detectives entered the bedroom to get clothes for defendant and at that point the evidence was seized.

Detective Heinrich provided similar testimony. He testified that he participated in the investigation of defendant in connection with a residential burglary and that he was involved in the issuance of the arrest warrant and subsequent arrest of defendant. Heinrich stated that a few days prior to defendant’s arrest he saw defendant in a vehicle on a highway, but because defendant was traveling in an opposite direction, Heinrich was unable to make an arrest. He also testified that on September 20 an anonymous caller notified police that defendant’s father and sister shared a rear apartment at 1334 North Kildare, and that the detectives would find defendant’s car parked at that location. The detectives drove to that address and staked out defendant’s car for several hours, after which time they decided to go to the apartment. Heinrich testified that he accompanied Detective Jim Bryant to the back entrance to the apartment. They knocked on the door several times, announcing that they were police officers with a warrant for his arrest. When defendant refused to open the door, the detectives found a hammer and used it to break the door, which led to the kitchen. After defendant was placed under arrest, the detectives accompanied defendant to the bedroom so that he could get dressed. Heinrich stated that he believed that the door to the bedroom was open. He also testified that he thought that a gun was found while they were all in the bedroom, but he could not recall who found the gun.

In denying defendant’s motion the court commented that it believed Baraniak’s testimony, that defendant’s arrest was based on a warrant, that at the time the evidence was observed by the detectives the detectives were in a place they had a right to be, and that the arrest was not a pretext for a search of the apartment.

Our review of the trial court’s decision to deny defendant’s motion to suppress recognizes that its ruling will not be set aside unless clearly erroneous. (People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 677; People v. Brink (1988), 174 Ill. App. 3d 804, 529 N.E.2d 1.) Defendant argues that the arrest was a subterfuge to gain access to the apartment for the dominate purpose of conducting a search for evidence. To prevail on a motion to suppress based on a subterfuge theory, defendant must prove that the motive of the police in arresting defendant at a particular place was to find evidence. (See 2 W. La-Fave, Search & Seizure §6.7(d) at 728 (2d ed. 1987).) In support of this argument, defendant points to the delay from the time the arrest warrant was issued on September 5 to defendant’s subsequent arrest on September 20 and to the fact that the detectives admitted having seen defendant on several occasions during that period of time and yet never attempted to arrest defendant. The trial court considered this argument and determined that the arrest was not a pretext to gain access to the apartment to conduct a search.

After a review of the record, we cannot say that the trial court’s determination was manifestly erroneous.

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Bluebook (online)
535 N.E.2d 1105, 180 Ill. App. 3d 406, 129 Ill. Dec. 340, 1989 Ill. App. LEXIS 270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-sawczenko-illappct-1989.