People v. Urbina

916 N.E.2d 1, 333 Ill. Dec. 882, 393 Ill. App. 3d 1074, 2009 Ill. App. LEXIS 796
CourtAppellate Court of Illinois
DecidedAugust 20, 2009
Docket2-07-0546, 2-07-0607 cons.
StatusPublished
Cited by10 cases

This text of 916 N.E.2d 1 (People v. Urbina) 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. Urbina, 916 N.E.2d 1, 333 Ill. Dec. 882, 393 Ill. App. 3d 1074, 2009 Ill. App. LEXIS 796 (Ill. Ct. App. 2009).

Opinion

JUSTICE McLAREN

delivered the opinion of the court:

In this consolidated appeal, defendants, Lisa A. Urbina and Alex J. Fahey, appeal their convictions of possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(B) (West 2006)) and sentences of eight years’ imprisonment. On appeal, both defendants argue that the trial court erred by denying their motions to quash a search warrant and suppress the evidence seized by police during the search. Specifically, they aver that the police officers violated their fourth amendment rights by executing the search warrant at an apartment that was not listed on the warrant. We reverse.

Initially, we note that, in connection with the same set of facts, defendants were also charged in federal court with conspiracy to distribute five kilograms or more of cocaine (21 U.S.C. §§841(a)(l), 846 (2006)) and with using a telephone to facilitate the distribution of cocaine (21 U.S.C. §843(b) (2006)). The United States District Court, Judge Joan Lefkow presiding, granted defendants’ motions to suppress evidence seized at the apartment building. United States v. Fahey, No. 07 — CR—239—8 (N.D. Ill. January 29, 2008). The district court found that the police officers impermissibly used their discretion when executing the search warrant, knowing that it was ambiguous when they executed it. Fahey, slip op. at 6-8. Although we are not required to follow the district court’s ruling, we believe Judge Lefkow’s analysis is persuasive and we take judicial notice of the order (see People v. Mata, 217 Ill. 2d 535, 539-40 (2005)).

I. FACTS

Prior to their separate trials, defendants independently filed motions to quash the search warrant and suppress the evidence obtained from the search. The search warrant authorized officers to search:

“230 Crystal Street, Apartment D, Cary, McHenry County, Illinois being described as a multitenant, two-story apartment complex consisting of four apartments, with the entire building having grey siding with white trim and a roof with dark grey shingles, and the numbers 230 are affixed to the building above the main entrance with apartment D on the left top of the stairs with the letter D affixed to the door.” (Emphases added.)

Defendants’ motions argued that the search warrant authorized a search of “Apartment D” in the apartment building, but that the police actually searched apartment “C” where the evidence was found.

Special Agent Daniel Thomas of the North Central Narcotics Task Force of the Illinois State Police gave essentially the same testimony at the hearings for both defendants’ motions. He testified that a confidential informant contacted him and told him that the informant was buying cocaine out of an apartment at 230 Crystal Street in Cary, Illinois (the apartment building). On two occasions, Thomas went to the apartment building with the informant, who engaged in two controlled drug buys. The apartment building had four apartments, two on the first floor and two on the second floor.

Thomas testified that during both controlled purchases on both occasions, he waited inside his car, approximately 50 feet away from the front of the apartment building, and watched the informant walk into the main entrance of the apartment building and up the stairs. Thomas could not see where the informant went after he walked up the stairs. Thomas saw children looking out the windows of the second-floor apartment on the left side of the building. He suspected that these children were “lookouts.” Thomas also testified that he was concerned during one of the controlled purchases that the children were yelling about his presence.

Thomas testified that while he was observing the apartment building during the first controlled purchase, it was “nighttime,” and there were lights on in the upstairs apartment on the left. He saw the blinds in the window of that apartment get “sucked” into the window around the time the occupants of the apartment would have opened and closed the door for the informant. After the informant completed the controlled purchases, he discussed the layout of the apartment building with Thomas. The informant told Thomas that the apartment where he bought the cocaine was apartment “D,” was on the left at the top of the stairs, and had a blue door. The informant told Thomas that the identifiers on the doors were white stickers with black lettering. The informant told Thomas that the letters on the doors were “obscured somewhat with [blue] paint being rolled over it.” However, the letters could still be seen through the paint.

Thomas testified that he filled out a complaint and affidavit for a search warrant. Both documents stated that the informant bought the cocaine in apartment “D,” the apartment on the left at the top of the stairs. The search warrant was issued.

Thomas testified that on April 15, 2006, officers executed the search warrant and Thomas acted as the case agent overseeing the search. Thomas waited outside the apartment building while the other officers entered the building and went up the stairs. Before proceeding to an apartment to execute the search warrant, the officers stopped and asked Thomas to come to the second floor of the apartment building to identify the proper apartment to enter, because, contrary to the search warrant, apartment “D” was to the right, and apartment “C” was to the left. Thomas went to the second floor of the apartment building and saw the two doors marked “C” and “D” for the first time and told the officers to search apartment “C,” which was to the left. Thomas had “no doubt” that when the search warrant was being executed, the apartment on the left at the top of the stairs was the intended target of the search. The officers entered apartment “C” and searched the premises, finding drug paraphernalia and a substance that was later determined to be cocaine. The officers then arrested defendants, who were both present during the search.

The trial court denied defendants’ motions to quash the warrant and suppress the evidence, noting that, because the officers verified the apartment with Thomas, the search warrant was not unconstitutionally vague. The trial court also denied defendants’ motions to reconsider the denial of their motions to quash and suppress.

Defendants had a joint, stipulated bench trial. The parties stipulated that the search warrant directed the officers to search 230 Crystal Street, Apartment D, Cary, Illinois; and that defendants were present during the search. The parties also stipulated that various items, including material that was suspected of being cocaine and drug paraphernalia, were found in the apartment, and that there was a proper foundation to introduce these items into evidence. The parties also stipulated that there was a proper chain of custody for the alleged cocaine and that it was tested by a forensic chemist who found the substance to be cocaine.

The trial court found defendants guilty.

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Bluebook (online)
916 N.E.2d 1, 333 Ill. Dec. 882, 393 Ill. App. 3d 1074, 2009 Ill. App. LEXIS 796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-urbina-illappct-2009.