2017 IL App (1st) 142726
FIFTH DIVISION April 14, 2017
No. 1-14-2726
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) v. ) ) No. 13 CR 3697 TINO TERRELL, ) ) ) Defendant-Appellant. ) Honorable ) Michael B. McHale, ) Judge Presiding.
JUSTICE HALL delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Reyes concurred in the judgment and opinion.
OPINION
¶1 Defendant Tino Terrell was convicted of possession of a controlled substance
following a bench trial and sentenced to 15 years’ imprisonment. This is a direct appeal from
the judgment of the trial court.
¶2 BACKGROUND
¶3 Terrell was charged with eleven counts of unlawful possession of a weapon by a
felon, two counts of possession with intent to deliver a controlled substance, one count of
possession of cannabis with intent to deliver, and one count of possession with intent to
deliver methamphetamine. No. 1-14-2726 Draft Opinion
¶4 At trial, Officer Robert Gallas testified that on January 17, 2013, he was assigned to a
gang unit tasked with executing a search warrant at 6809 South Laflin Street, a two bedroom
1st floor apartment in Chicago, Illinois (Apartment). At approximately 9 p.m., his unit
entered the apartment. The apartment door was barricaded with a “scissor gate” with a large
padlock. While police attempted to open the door, the lessee of the premises, later discovered
to be Edward McDaniel, came to the door. Because McDaniel would not promptly open the
door, and the padlock was too large to be cut with large bolt cutters, the team used a
“Chicago bar” and sledge hammer to pull the gate from its hinges and enter the apartment.
Upon entering, Officer Gallas noted that the rear door was barricaded with two-by-fours.
¶5 Officer Dan Pacelli testified that he was also assigned to the team executing the
search warrant. He testified that he searched the dining room and front living room area of
the apartment. While conducting his search, Officer Pacelli found two prescription bottles
with Terrell’s name on them in the living room. The trial court noted that the address on the
pill bottles differed from the Apartment. One of the bottles had a “use by” date of August 24,
2013, and the date August 24, 2012, was also written on the bottle. The other bottle had a
date of issuance of May 23, 2012. One of the bottles still contained pills, while the other was
empty. Pacelli also recovered an adult probation card in the living room near the prescription
bottles that bore Terrell’s name. Terrell’s passport was found in the same area as the bottles
and the card.
¶6 Officer Pacelli also recovered two duffle bags from atop the dining room china
cabinet. The bags contained clothing that appeared to fit a male larger than himself. Pacelli
described himself as six feet one inches tall and weighing 250 pounds. The court noted that
Terrell was larger in size than Officer Pacelli and was wearing a 4XL tan department of
2 No. 1-14-2726
Draft Opinion
corrections uniform. Officer Pacelli also noted that Edward McDaniel was of smaller
proportions, approximately six feet tall and 160-165 pounds.
¶7 Officer Michael O’Connor testified that he was also a part of the search warrant team
on January 17, 2013. He stated that there were paintings and photos all over the front living
room and that he recovered a framed photograph that included Terrell.
¶8 Officer Gus Bedoy testified that he searched the whole house and found nothing in
the bathroom, kitchen, or either bedroom demonstrating that Terrell lived in the Apartment.
Bedoy also testified that he searched the hallway closet and discovered clothing. He stated
that while searching a hallway closet, he noticed U-shaped scratches on the side of each wall.
He noted that part of the panel on the wall was loose which led him to look inside. He found
metal tracks inside the wall and uncovered a large, clear, plastic bag which he suspected
contained cannabis. He noted that the hidden compartment, commonly referred to as a trap,
was three feet wide, three feet high, and approximately two feet deep. Its composition
consisted of two-by-fours, metal rails, a battery, power motor, and plastic bands. The trap
contained United States currency, digital scales, mixing containers, and mixing agents.
¶9 Later, Officer Ciocci discovered multiple firearms in the trap, and the parties
stipulated that the weapons recovered consisted of the following guns: a .45 caliber, a loaded
9mm Ruger, a loaded 9mm Berretta, a .357 caliber, a .765 caliber, a loaded 9mm CPX1, and
a 9mm Taurus. Also recovered were eight boxes of ammunition.
¶ 10 During the search, FBI Special Agent Christopher Weismantel went out to his car and
observed a red pickup truck parked behind him. His car was parked almost directly in front
of the Apartment, and agent Weismantel had been previously informed that the pickup truck
might belong to Terrell. After noticing Terrell sitting in the driver’s seat of the pickup,
3 No. 1-14-2726 Draft Opinion
Weismantel approached him, engaged him in conversation, and asked him to come inside the
Apartment, where Terrell was ultimately arrested. Officer Gallas searched Terrell and
testified that he could not recall finding any drugs on him or anything indicating that Terrell
lived at the Apartment.
¶ 10 Sergeant Michael Karczewski read Terrell his Miranda rights at the Apartment, and
later, at the police station, Terrell gave the police signed written consent to search the pickup
truck. Officer Bedoy testified that, while searching Terrell’s vehicle, he discovered a trap
hidden behind the radio compartment. He testified that the trap resembled the one found
inside Apartment’s hallway closet. Specifically, he noted that the motorized bands and
insulation in the two traps were similar in composition and nature; however, he also stated
that he could not tell whether the same person installed them at the same time and that the
parts used were common and could be purchased at electronics or auto parts stores.
¶ 11 At trial, the State introduced a certified copy of defendant’s previous conviction for
possession of a controlled substance, under case number 11CR0855601, in which Terrell was
sentenced to 24 months probation on September 10, 2012. The State also submitted a
certified vehicle record showing defendant’s ownership of the pickup truck. The address
listed on the vehicle record was 7224 South Marshfield Avenue, Chicago, Illinois.
¶ 12 Defense witness David Cole testified that he owned the home located at 6809 South
Laflin Street for 14 years and described it as consisting of two floors; Edward McDaniel had
been the lessee of the first floor apartment since 2011. Cole testified that he did not know
defendant and that McDaniel paid the rent in person outside the apartment every month.
4 No. 1-14-2726 Draft Opinion
¶ 13 The trial court found defendant guilty on all counts except the methamphetamine
charge, and on July 14, 2014, the trial court denied defendant’s motion for a new trial.
Subsequently, this appeal followed.
¶ 14 ANALYSIS
¶ 15 The dispositive issue on appeal is the sufficiency of the evidence supporting Terrell’s
convictions. Specifically, Terrell contends that the evidence was insufficient to establish that
he constructively possessed the drugs and weapons recovered from the Apartment’s hallway
closet. In response, the State contends that the facts of this case demonstrate that Terrell
inhabited the Apartment and therefore support a finding that Terrell had constructive
possession over the drugs and weapons. We disagree with the State.
¶ 16 A challenge to the sufficiency of the evidence requires us to consider whether “ ‘after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt.’ ” People
v. Fernandez, 2016 IL App (1st) 141667, ¶ 17 (quoting People v. Baskerville, 2012 IL
111056, ¶ 31). We will not substitute our judgment for that of the trier of fact, and we will
not reverse a conviction unless the evidence is so improbable or unsatisfactory as to create a
reasonable doubt of defendant’s guilt. People v. Beauchamp, 241 Ill. 2d 1, 8 (2011).
¶ 17 Terrell challenges his convictions on the basis that the State did not prove he
possessed the contraband recovered. Possession may be either actual or constructive. People
v. Love, 404 Ill. App. 3d 784, 788 (2010). Because it is undisputed that Terrell did not have
actual possession of the weapons, ammunition, or drugs, we consider only whether he
constructively possessed these items. Constructive possession exists where there is no
personal dominion over the contraband, but the defendant has control over the area where the
5 No. 1-14-2726 Draft Opinion
contraband was found. People v. Hunter, 2013 IL 114100, ¶ 19. Stated differently, the State
must prove beyond a reasonable doubt that the defendant had knowledge of the presence of
the contraband and exercised “immediate and exclusive” control over the area where the
contraband was discovered. People v. Tates, 2016 IL App (1st) 140619, ¶ 19. Significantly,
evidence establishing constructive possession is “ ‘often entirely circumstantial.’ ” People v.
McCarter, 339 Ill. App. 3d 876, 879 (2003) (quoting People v. McLaurin, 331 Ill. App. 3d
498, 502 (2002)). “A trier of fact is entitled to rely on an inference of knowledge and
possession sufficient to sustain a conviction ‘absent other factors that might create a
reasonable doubt as to the defendant’s guilt.’ ” People v. Alicea, 2013 IL App (1st) 112602,
¶ 24 (quoting McCarter, 339 Ill. App. 3d at 879 ).
¶ 18 Generally, habitation of the location where contraband is found is sufficient evidence
of control constituting constructive possession. See People v. Maldonado, 2015 IL App (1st)
131874, ¶ 29. Evidence of residency or habitation often takes the form of rent receipts, utility
bills, or mail. See, e.g., id.; People v. Lawton, 253 Ill. App. 3d 144, 147 (1993). In this
particular case, none of the aforementioned items link Terrell to the Apartment; nevertheless,
the State contends that the lack of evidence of residency is not dispositive in light of the
circumstances and the other items found in the Apartment. Specifically, the State points to
the fact that (1) large men’s clothes were found on top of the china cabinet in the dining
room, (2) two prescription bottles and an adult probation card bearing Terrell’s name were
found next to the living room couch with his passport, and (3) a framed photo depicting
Terrell was recovered from the living room.
¶ 19 In support of its contention, the State draws this Court’s attention to the decision in
People v. Cunningham, 309 Ill. App. 3d 824 (1999). In that case, the police arrested the
6 No. 1-14-2726 Draft Opinion
defendant at a tavern and later returned him to his purported residence. Cunningham, 309 Ill.
App. 3d at 826. The police unlocked the home, using a key from the defendant’s key ring. Id.
Once in the home, the police used another key, taken from defendant’s key ring, to unlock
the front bedroom. Id. The police discovered men’s clothes in the bedroom closet and tools
on the floor. Id. They also found cocaine, three scales, a mixing bowl, a box of ammunition,
and the defendant’s inmate identification card. Id. While searching the defendant, the police
also found packets of cocaine in his shoes and an Illinois driver’s license with the address of
the purported residence. Id. The defendant also gave the same address to his parole officer
and the arresting officer, in addition to having mail delivered to the purported residence. Id.
at 828. Consequently, the reviewing court found the evidence sufficient to support
defendant’s conviction. Id.
¶ 20 Unlike in Cunningham, the trial court in this case was not presented with a plethora of
evidence tying Terrell to either the Apartment or to the hidden contraband. First, the pat
down search of Terrell uncovered no contraband or drug paraphernalia tying him to any of
the items discovered in the hallway closet trap. See In re K.A., 291 Ill. App. 3d 1, 8 (1997);
see also People v. Minkin, 133 Ill. App. 2d 549, 551 (1971) (reversing conviction of unlawful
possession of narcotic drugs where, inter alia, no contraband was found on defendant’s
person). Second, Terrell did not have a key to the Apartment which, because of the rear door
barricade, could only be entered by unlocking the front door and the scissor gate equipped
with the large padlock. See In re K.A., 291 Ill. App. 3d at 7 (noting defendant did not have
key to the apartment and had to be let inside by another occupant); see also People v. Ray,
232 Ill. App. 3d 459, 462-63 (1992) (noting that the only person who had a key to the
residence was the codefendant rather than the defendant). On the contrary, it was the lessee,
7 No. 1-14-2726 Draft Opinion
Edward McDaniel, who answered the door and attempted to unlock the scissor gate for the
police. See Fernandez, 2016 IL App (1st) 141667, ¶ 21 (finding the presence of an
unidentified man on the premises at the time the police executed the search warrant weighs
against a finding that defendant maintained control over the premises).
¶ 21 Third, the evidence supporting the Cunningham court’s conclusion that the defendant
resided at the address where the contraband was discovered was substantial and
uncontroverted. See Cunningham, 309 Ill. App. 3d at 828. In Cunningham, the defendant’s
mail was delivered to the residence where the contraband was found. Id. Moreover, the
residence’s address was listed on defendant’s driver’s license, and the defendant provided the
same address to his arresting officer and to his parole officer. Id. Here, the owner of the
Apartment testified that he did not know who Terrell was, and none of the addresses listed on
any of the evidence matched the Apartment’s address. The trial court noted that the pill
bottles contained different addresses, and the certified vehicle record also listed a separate
Chicago address than that of the Apartment. People v. Moore, 2015 IL App (1st) 140051, ¶ 28
(taking into consideration evidence presented at trial that defendant did not live at the house).
¶ 22 In further support of its position, the State cites the decisions in People v. Givens, 237
Ill. 2d 311 (2010), and People v. Walton, 221 Ill. App. 3d 782 (1991); however, like
Cunningham, the facts in those cases are distinguishable from the facts in the case before this
Court. In Givens, the Illinois Supreme Court noted that the arresting officers found the
defendant and her boyfriend lying in a bed located in the sole bedroom of an apartment.
Givens, 237 Ill. 2d at 317. In plain view, the officers observed a clear plastic bag containing
crack cocaine on top of a nightstand near the bed and within arm’s reach of the couple. Id.
The supreme court found the evidence established that the defendant had joint possession of
8 No. 1-14-2726 Draft Opinion
the drugs, and the court stated: “In [People v. Schmalz, 194 Ill. 2d 75 (2000)], the illegal
drugs were within a short distance of defendant, while in the instant case, the drugs were on a
nightstand within a short distance of the bed in which defendant was lying. A nightstand in a
bedroom is a place where it could reasonably be expected that a couple staying as overnight
guests would place their valuable personal items.” Id. at 338.
¶ 23 Similarly, the reviewing court in Walton found defendant to be in joint possession of
cocaine, even though her codefendant claimed ownership of the drugs. Walton, 221 Ill. App.
3d at 784-87. In Walton, the defendants fled by car from the police and subsequently crashed
the vehicle. The driver stumbled back to the vehicle and retrieved a sealed package that was
leaking white powder. Id. at 783. The white powder was cocaine, and it was later established
that it was stashed behind the driver’s seat. Id. The car belonged to the defendant, who was a
passenger at the time of the crash. Id. After patting down the defendant, the police found 96
plastic bags and a gram scale. Id. at 784. In finding the evidence sufficiently established
constructive possession, the reviewing court noted that the car belonged to the defendant, and
“her possession of the paraphernalia used in the distribution of narcotics was circumstantial
evidence which provided the necessary corroboration.” Id. at 787.
¶ 24 Contrary to the facts in both Givens and Walton, the record before this Court
demonstrates that no contraband or paraphernalia were discovered on Terrell’s person, in his
pickup truck, or in plain view inside the Apartment; all of the contraband was discovered
hidden in the ceiling trap in the hallway closet. See In re K.A., 291 Ill. App. 3d at 7 (noting
narcotics were not in plain sight and were concealed). Officer Bedoy testified that he
searched the entire Apartment and found nothing in either of the two bedrooms, the
bathroom, or the kitchen evidencing Terrell inhabited the Apartment. None of Terrell’s
9 No. 1-14-2726 Draft Opinion
property was found in the same room as the contraband. Clothes were found in the bedrooms
and the hallway closet, but they were also never linked to Terrell. Although the trial court
noted that Terrell wore a 4XL department of corrections jumpsuit, and Officer Pacelli
testified that the clothing found on top of the dining room china cabinet was larger than
would fit him, this clothing was not found next to or in the same room as the contraband, and
neither were the prescription bottles, the passport, the probation card, or the photograph. See
People v. Moore, 2015 IL App (1st) 140051, ¶ 25 (noting contraband was not recovered from
the area where police found the male clothing and mail addressed to the defendant).
¶ 25 Agent Weismantel discovered Terrell sitting in his empty pickup truck across the
street from the Apartment, rather than within arm’s reach of contraband (Givens) or inside a
car containing drugs and drug paraphernalia (Walton). See Ray, 232 Ill. App. 3d at 462-63
(reversing convictions based upon constructive possession where defendants found sitting in
living room on couch 18 inches from handgun, United States currency, and drugs).
Notwithstanding these distinctions, the State contends that Terrell’s presence across the street
from the Apartment, sitting inside his truck equipped with a hidden compartment, supports
the conclusion that Terrell resided in the Apartment. However, reviewing courts have made it
clear that mere presence in the vicinity or access to the area in which contraband is found is
insufficient to establish constructive possession. See People v. Sams, 2013 IL App (1st)
121431, ¶ 13; People v. Macias, 299 Ill. App. 3d 480, 487 (1998); People v. Rangel, 163 Ill.
App. 3d 730, 739 (1987)).
¶ 26 At trial, the State introduced evidence showing Terrell purchased the pickup truck on
June 6, 2010, as well as evidence that, at the time of his arrest, he was serving 24 months
probation for his September 10, 2012, possession of a controlled substance conviction. The
10 No. 1-14-2726 Draft Opinion
State elicited Officer Bedoy’s testimony that he conducted a search of the truck’s hidden
compartment, and he opined that the trap was similar to the one in the Apartment. He
testified that both traps were made from common components sold at electronics and auto
stores. Bedoy’s search of the truck’s hidden compartment revealed no drugs, weapons, or
paraphernalia; the trap was completely empty. The State presented no physical evidence
indicating anything had been in the truck’s hidden compartment nor any physical evidence
tying Terrell to the seven guns, eight boxes of ammunition, digital scales, mixing containers
or bags of drugs. See Sams, 2013 IL App (1st) 121431, ¶ 13 (finding evidence insufficient to
sustain a conviction for constructive possession of the gun where, inter alia, no physical
evidence connected defendant to the gun); see also Lawton, 253 Ill. App. 3d at 148
(sustaining conviction where field test showed presence of cocaine on defendant’s hands
connecting him to the cocaine inside the apartment); see also People v. Bond, 205 Ill. App.
3d 515, 517 (1990) (defendant’s fingerprints were found on a bottle of a substance used to
dilute cocaine). As a result, we find the connection between the hallway closet trap and the
empty hidden compartment in Terrell’s truck to be tenuous at best. See Fernandez, 2016 IL
App (1st) 141667, ¶ 23 (finding the discovery of defendant’s passport, insurance card,
framed pictures of defendant, men’s clothing, and a .38-caliber gun in the bedroom of the
house bore a tenuous relationship to, inter alia, the .38-caliber bullets found in the garage).
¶ 27 In Ray, 232 Ill. App. 3d 459, and Fernandez, 2016 IL App (1st) 141667, both of
which defendant cites in his brief, the defendants’ convictions were reversed in the face of
stronger evidence of constructive possession than was presented here. In Ray, police
recovered cocaine, cash, and drug paraphernalia from the apartment living room where the
three defendants were sitting. Ray, 232 Ill. App. 3d at 460-61. Despite the defendants’ seated
11 No. 1-14-2726 Draft Opinion
positions within a few feet of the contraband, the appellate court reversed their convictions
for cocaine possession, noting the only evidence connecting them to the apartment was a six-
month-old cable TV bill in the name of one defendant. Id. at 463.
¶ 28 Similarly, in Fernandez the police arrested defendant after he fled. The police
recovered heroin from his person and from within his car. Fernandez, 2016 IL App (1st)
141667, ¶ 8. The police also recovered a set of keys from defendant, and subsequently
executed a search warrant of the home which the keys unlocked. Id. ¶¶ 9-10. The search of
the home revealed a handgun under the mattress in a bedroom. Id. ¶ 11. In the same
bedroom, officers found the defendant’s passport and insurance cards, as well as framed
pictures of defendant and the woman with whom he was driving on the day of his arrest. Id.
The closet held both men’s and women’s clothes, and there were additional framed pictures
of the defendant with the same woman hanging on the wall in the living room. Id.
Notwithstanding this evidence, the reviewing court reversed defendant’s conviction, noting
that the evidence did not link him to the home’s address and that the hidden location of the
gun was a factor creating reasonable doubt as to defendant’s knowledge of the presence of
the gun. Id. ¶¶ 19-22.
¶ 29 Assuming arguendo—due to the presence of his passport, the prescription bottles, the
adult probation card, the large men’s clothes, and the framed picture in the living and dining
room—that Terrell had some connection with the residence, the fact that the contraband was
concealed in a compartment in the hallway closet undercuts the inference that he had
knowledge of its existence. See, e.g., id. ¶ 24 (handgun was found hidden under the mattress
in the bedroom and other contraband was found under the hood of a van in a detached
garage); Maldonando, 2015 IL App (1st) 131874, ¶ 41 (drugs were hidden in a statue on the
12 No. 1-14-2726 Draft Opinion
bedside table); Moore, 2015 IL App (1st) 140051, ¶ 25 (contraband was hidden in a desk
drawer); In re K.A., 291 Ill. App. 3d at 7 (narcotics were hidden under a McDonald’s box in a
hole in the closet); People v. Adams, 242 Ill. App. 3d 830, 831 (1993) (cocaine was hidden in
a cabinet under the bathroom sink and in the freezer). On this point, Maldonando, 2015 IL
App (1st) 131874, is instructive. The reviewing court reversed the defendant’s conviction for
possession of drugs, in part, because despite the fact that mail addressed to him was found on
the premises, the drugs recovered were hidden in a statue. Id. ¶ 41. The reviewing court
reasoned that even if the mail established the defendant’s control over the premises (which
the reviewing court determined it did not), the fact that the contraband was hidden, coupled
with the State’s failure to prove that the defendant was ever inside the residence, precluded a
finding that the defendant had knowledge of the drugs. Id. Consistent with the reasoning in
Maldonando, the reviewing court in Fernandez reached the same conclusion. See Fernandez,
2016 IL App (1st) 141667, ¶¶ 9-11.
¶ 30 Similarly, in the case at bar, the hidden location of the contraband and the State’s
failure to prove that Terrell ever entered the home creates a reasonable doubt as to Terrell’s
knowledge of the contraband in the hallway closet trap. Even when viewed in the light most
favorable to the prosecution, the evidence presented at trial does not support a finding that
defendant committed the essential elements of the crime beyond a reasonable doubt.
¶ 31 CONCLUSION
¶ 32 Accordingly, Terrell’s conviction for possession of a controlled substance with intent
to deliver, possession of cannabis with intent to deliver, and eleven convictions for unlawful
possession of a weapon by a felon are reversed. Given this disposition, we need not address
13 No. 1-14-2726 Draft Opinion
defendant’s contention on appeal relating to the admission of the probation card or Terrell’s
allegations of ineffective assistance of counsel.
¶ 33 Reversed.