In re DW

• Decision Date: 16 June 2003
• Docket Number: No. 1-01-0696.,1-01-0696.
• Citation: 341 Ill. App.3d 517,275 Ill.Dec. 566,793 N.E.2d 46
• Parties: In re D.W., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. D.W., a Minor, Respondent-Appellant).
• Court: United States Appellate Court of Illinois

793 N.E.2d 46

341 Ill. App.3d 517

275 Ill.Dec. 566

In re D.W., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. D.W., a Minor, Respondent-Appellant).

No. 1-01-0696.

Appellate Court of Illinois, First District, First Division.

June 16, 2003.

Michael J. Pelletier, Office of the State Appellate Defender, Chicago (Heidi Linn Lambros, of counsel), for Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Judy DeAngelis and John Mahoney, of counsel), for Appellee.

Justice O'MALLEY delivered the opinion of the court:

Minor respondent-appellant D.W. was adjudicated delinquent upon a finding that he possessed more than 100 grams of a controlled substance. He was sentenced to three years' probation. He appeals his adjudication of delinquency and sentence.

BACKGROUND

On November 20, 2000, D.W. filed notice of his motion to suppress physical evidence seized subsequent to his warrantless arrest on October 15, 2000. The motion to suppress alleged that on October 15, 2000, police officers seized evidence that may incriminate D.W.; D.W. had a valid property interest in the area searched; the seizure of the evidence was without lawful authority because the arrest was made without a warrant, no consent for arrest, search or seizure was given, the search and seizure violated D.W.'s right under the fourth amendment of the United States Constitution and sections 2, 6 and 10 of the Illinois Constitution; and the search and seizure was not incident to or contemporaneous with the valid arrest of petitioner.

At the November 28, 2000, hearing on D.W.'s motion to suppress, the parties stipulated that there was no search warrant or arrest warrant.

Officer David Harris testified that on October 15, 2000, Harris spoke with a citizen face to face and that citizen told him that there was someone selling drugs in front of the building at 2629 South Calumet. The citizen described the seller as a black male with a large build named Darrian. Officer Harris stated that he knew of the "Darrian" referred to because he had seen him in the neighborhood before. Harris stated that the police station was two blocks from the address given, he was in that area every day and he considered it to be a heavy narcotics trafficking area. Officer Harris testified that approximately 30 minutes elapsed between his receiving the information from the unnamed citizen and his going to the location. While in uniform, he and his partner proceeded to 2629 South Calumet. Harris stated that he and his partner approached from the front of the building and other officers approached from the rear of the building. When he approached the building, Harris noted that there were four people standing outside, two women and two men. Harris stated that one of the men fit the description provided to him earlier and that respondent is a fairly large individual, approximately six feet, 1 inch, weighing around 225 pounds.

Officer Harris testified that when he drove up to building, he "[e]xited the vehicle and walked toward the building. As we got toward the front of the building we motioned to the defendant that we needed to speak to him and at that time he fled. * * * He ran up the stairs." The three other individuals did not move. Officer Harris chased respondent up the stairs, and [respondent] "entered the apartment at the top of the stairs." Harris was 5 or 10 feet behind respondent. When Harris arrived at the apartment door, the door "was slightly ajar" so he "just pushed it open." When he entered the apartment, he saw respondent go into the rear bedroom and "remove a large plastic bag from his jacket and attempt to conceal it under a bed." Officer Harris testified that the large plastic bag looked like "a sandwich bag containing white powder," which he believed to be cocaine. Harris then "took control of the [respondent] and [his] partner recovered the bag." Prior to entering the apartment, Harris did not know who lived in the apartment.

On redirect examination, Officer Harris testified that he "dealt" with the unnamed citizen providing the information several times in the past and the person wished to remain anonymous. He stated that he knows where the unidentified person lives. Harris further testified that when he observed respondent on the outside stairs, he did not see any hand to hand transactions performed by respondent or money exchanged, he did not know whether respondent had drugs and he did not see respondent violate any state, local or federal laws. Harris affirmed that he did not conduct surveillance of the area.

Following Officer Harris's testimony, the State moved for a directed finding on respondent's motion to suppress. The trial court postponed argument and asked the parties to gather case law for its review. D.W. submitted a brief to the juvenile court asserting that no exigent circumstances existed in this case to justify a warrantless search of the minor's residence, the minor was not under investigation of a recently committed crime, the police officers did not observe the minor violate any laws and the officers were not acting upon a clear showing of probable cause.

During the December 7, 2000, hearing on the State's motion for directed verdict, the court held that the officers did not have "true probable cause upon arrival at the scene" but "it then becomes probable cause upon the minor fleeing." The court also stated that whether the offense under investigation was recently committed was obvious, there was no unjustified delay by the officers during which time a warrant could have been obtained, "perhaps" a grave offense was involved, the officers were acting upon a clear showing of probable cause, there was a likelihood that the suspect would have escaped, there was a strong reason to believe the suspect was on the premises, and the arrest was made peaceably. The motion to suppress evidence was denied.

At the January 4, 2001, stipulated bench trial, the parties stipulated to the previous testimony of Officer Harris. If called to testify, Officer Ormand (Officer Harris's partner) would testify as to the chain of custody of evidence seized and forensic scientist Dorothy Kernan would testify that the evidence tested positive for cocaine with an estimated weight of 124.2 grams. The respondent moved for a directed finding following the stipulations. Without argument, the motion was denied. During respondent's case in chief, defense counsel adopted the argument articulated in her motion to suppress and the oral arguments made on December 7, 2000. The court made a "finding of delinquency of possession of controlled substance in excess of 100 grams."

In February 2001, D.W. was sentenced to 3 years' probation, 30 days in the juvenile detention center, mittimus was stayed, 24 days of "SWAP," "TASC" referral, random drug drops, mandatory school, and a 6 p.m. curfew.

D.W. presents the following issues for review: (1) whether the juvenile court erred in denying his motion to suppress evidence seized following a warrantless entry into D.W.'s residence; and (2) whether the juvenile court improperly concluded at D.W.'s sentencing that he was a gang member.

ANALYSIS

I. MOTION TO SUPPRESS

D.W. contends that the juvenile court erred in denying his motion to suppress the evidence obtained at his home because: (1) the uncorroborated tip by an unnamed citizen failed to establish probable cause; and (2) no exigent circumstances existed to justify the warrantless entry into D.W.'s residence. The State responds that the "hot pursuit" entry into the home and the subsequent arrest were proper based on the circumstances. Further, the State argues that probable cause to arrest arose upon respondent's flight from police and exigent circumstances supported Officer Harris's entry into the home.

A. Standard of Review

Ordinarily, the decision of a trial court on a motion to quash arrest and suppress evidence will not be disturbed by a reviewing court unless that finding is determined to be manifestly erroneous. People v. Love, 199 Ill.2d 269, 274, 263 Ill.Dec. 808, 769 N.E.2d 10 (2002). However, when neither the facts nor the credibility of the witnesses is questioned, the issue of whether exigent circumstances were present is a legal one and this court will consider the question de novo. People v. Foskey, 136 Ill.2d 66, 76, 143 Ill.Dec. 257, 554 N.E.2d 192 (1990)

. Because the facts and credibility of the witness are not called into question here, we will review the motion to suppress de novo.

The defendant bears the burden of proof at a hearing on a motion to suppress and must make a prima facie case that the evidence was obtained by an illegal search and seizure. People v. Berg, 67 Ill.2d 65, 68, 7 Ill.Dec. 589, 364 N.E.2d 880 (1977). If a defendant makes a prima facie case, then the State has the burden of going forward with the evidence to counter the defendant's prima facie case. People v. Wingren, 167 Ill.App.3d 313, 319, 118 Ill. Dec. 62, 521 N.E.2d 130 (1988).

B. The Tip as Probable Cause

Respondent asserts that the juvenile court erred in denying his motion to suppress evidence because the evidence was obtained as a result of the warrantless entry into his home and the uncorroborated tip by an unnamed citizen failed to establish probable cause. The State contends that based on the reliability of the tip provided by Officer Harris's informant, respondent was subject to lawful arrest at the time that he fled from police. The State maintains that the unnamed citizen's tip was corroborated by the citizen's "accurate physical description of the Minor Respondent; his knowledge that the Minor Respondent's first name was Darian [sic]; that Officer Harris already knew of Darian [sic] as a `regular' from the neighborhood; that based upon the citizen's physical description of the offender, Officer Harris recognized the offender as being the same Darian [sic] with whom he was familiar; that Darian [sic] was...