People v. Arce

• Decision Date: 30 June 1997
• Docket Number: No. 1-96-0128,1-96-0128
• Citation: People v. Arce, 683 N.E.2d 502, 289 Ill.App.3d 521, 225 Ill.Dec. 334 (Ill. App. 1997)
• Parties: , 225 Ill.Dec. 334 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jimmy ARCE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 502

683 N.E.2d 502

289 Ill.App.3d 521, 225 Ill.Dec. 334

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Jimmy ARCE, Defendant-Appellant.

No. 1-96-0128.

Appellate Court of Illinois First District, Third Division.

June 30, 1997.

Steven R. Decker, Chicago, for appellant.

Jack O'Malley, State's Attorney of Cook County, Chicago (Renee Goldfarb and Katherine S.W. Schweit, Assistant State's Attorneys, of Counsel), for appellee.

Justice CAHILLdelivered the opinion of the court:

After a jury trial defendant, Jimmy Arce, was convicted of possession of a controlled substance with intent to deliver and was sentenced to 20 years' imprisonment.Defendant appeals.Among other issues, we review the denial of a Franks hearing where defendant and the State relied upon affidavits from the same person, and the refusal of the trial court to inquire of prospective jurors if they would tend to believe the testimony of a police officer over that of other witnesses.We affirm.

At trial, Detective Graf testified that on March 7, 1994, a search warrant was issued for a residence in Chicago and the person of Jimmy Arce.Graf executed the search warrant along with a number of other officers.Graf knocked at the front door and announced his office and purpose.There was no response.The officers waited a few seconds and then made a forcible entry, using a sledge hammer on the front door lock.

When the officers found no one in the home they began their search.On a closet shelf in the front hall, Detective Graf found one large plastic bag and four smaller bags containing white powder, along with a battery-powered scale and correspondence addressed to defendant.He also saw men's and women's coats in the closet.After the search was completed, Graf left a copy of the search warrant on the kitchen table along with a note explaining what happened.

Graf testified that defendant telephoned him at about 6 p.m. later the same day.Defendant told Graf he would like to surrender the following day, but defendant was arrested at his home at approximately 9 p.m. that night.

Evidence at trial established that a fingerprint on the correspondence matched a fingerprint of someone other than defendant.Defendant's fingerprint matched a fingerprint taken from the scale.No cocaine residue was found on the scale.The condition of the plastic bags did not permit fingerprint analysis.

Tests established that the white powder in the bags was cocaine.The total weight of the cocaine was more than 821 grams.The substance was 87.4% pure.

Chicago police detective Karen Morrisette qualified to testify as an expert in the buying and selling of controlled substances.She testified that, on the street, a narcotics user would buy between a quarter of a gram to a gram of powder cocaine or a tenth of a gram in rock form.A quarter gram would sell for $25.The purity level was usually 80%.She estimated that 270 grams of cocaine could be worth as much as $280,000.She testified that the electronic scale entered as an exhibit is the kind typically used by drug sellers.

The jury found defendant guilty of possession of a controlled substance with intent to deliver.He was later sentenced to 20 years in prison.Defendant's motion for a new trial was denied.

Defendant first argues that he was not proven guilty beyond a reasonable doubt.He contends the evidence at trial failed to establish that he had power or control over the drugs.Defendant stresses that: he was not present at the time of the search; his fingerprints were not on the bags of cocaine and correspondence found in the front closet; only a fingerprint on the scale matched his fingerprint; and no cocaine residue was found on the scale.

To prove the crime of unlawful possession, the State must establish that the defendant knew of the presence of narcotics and that the narcotics were in his immediate and exclusive control.People v. Embry, 20 Ill.2d 331, 334, 169 N.E.2d 767(1960).Knowledge can be established by evidence of acts, declarations or conduct from which an inference may be fairly made that a defendant knew of the existence of the narcotics at the place where they were found.Embry, 20 Ill.2d at 334, 169 N.E.2d 767.The trier of fact must decide whether the accused had such knowledge.Embry, 20 Ill.2d at 334, 169 N.E.2d 767.Physical possession need not be directly proven.A conviction can be sustained when constructive possession can be inferred from the facts.People v. Stamps, 108 Ill.App.3d 280, 292-93, 63 Ill.Dec. 919, 438 N.E.2d 1282(1982).Constructive possession is defined as " 'that which exists without actual personal present dominion * * *, but with an intent and capability to maintain control and dominion.' "Stamps, 108 Ill.App.3d at 292, 63 Ill.Dec. 919, 438 N.E.2d 1282, quotingPeople v. Fox, 24 Ill.2d 581, 585, 182 N.E.2d 692(1962).

Findings of the trier of fact will not be disturbed on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of guilt.Stamps, 108 Ill.App.3d at 292-93, 63 Ill.Dec. 919, 438 N.E.2d 1282.Here, mail addressed to defendant was found in a closet of the house.His fingerprint was found on the scale, next to the cocaine.The evidence supports a jury finding of constructive possession and control of the cocaine.

Defendant next argues that the denial of his motions for a Franks hearing and to quash the search warrant was error.Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667, 672(1978).

According to the search warrant complaint, a confidential informant told Graf that on March 7, 1994, the informant went to 2955 N. Kolmar, known to the informant to be the residence of defendant, and at that time, defendant showed him a loaded gun in the front closet.The informant and defendant then walked to a restaurant with the gun in defendant's possession.Defendant left the informant at the restaurant and said he was going home.Graf stated that he has known the informant for three years.The last six times Graf received information about a firearm from the informant he recovered a firearm.

Defendant filed a motion to quash the search warrant and requested a Franks hearing before trial.Probable cause must be established before a search warrant may be issued.U.S. Const., amend. IV;Ill. Const.1970, art. I, § 6.Whether probable cause exists for the issuance of a search warrant is a question to be decided by the judge before whom the complaint for a search warrant is made.People v. Velez, 204 Ill.App.3d 318, 329, 149 Ill.Dec. 783, 562 N.E.2d 247(1990).Probable cause means that the affiant relied on information that was trustworthy in and of itself and this information led him to believe that the law was being broken and that evidence of it was in the premises or on the person to be searched.People v. Francisco, 44 Ill.2d 373, 376, 255 N.E.2d 413(1970).When a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the fourth amendment requires that a hearing be held at the defendant's request.Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676, 57 L.Ed.2d at 672.

As part of his preliminary showing, defendant established that he was on an electrical home monitoring system at the time of the arrest.Defendant and the State each submitted an affidavit from the president of a private firm that operates the monitoring system in conjunction with the Illinois Department of Corrections.The president stated, in the affidavit submitted by defendant, that on March 6: defendant's alarm did not sound; the radio frequency was not lost; defendant was at home; and the unit was functioning properly.The president's affidavit submitted by the State said that he reviewed defendant's records from March 6 and 7 and that the maximum distance defendant could have travelled from his residence is 100 feet.But the president further stated that if defendant had exceeded this distance he could have done so for up to five minutes without detection.

Defendant's counsel argued at the hearing that the restaurant was approximately two blocks from defendant's home and that defendant could not jog to and from the restaurant within five minutes.

The court held an in camera inspection of Graf's confidential informant file.The court then stated that it believed the informant existed, that the officer had known him 31/2 years, and the informant had been reliable.The court denied defendant's motion for a Franks hearing.We review such a denial under an abuse of discretion standard.People v. Pearson, 271 Ill.App.3d 640, 643, 208 Ill.Dec. 102, 648 N.E.2d 1024(1995).

A substantial showing requires something more than mere denials on the one hand and less than proof by a preponderance of the evidence on the other.Pearson, 271 Ill.App.3d at 643, 208 Ill.Dec. 102, 648 N.E.2d 1024."The determination in a given case must be based upon a careful balancing of the statements in the warrant affidavit versus those in support of the defendant's challenge to the warrant."People v. Lucente, 116 Ill.2d 133, 152, 107 Ill.Dec. 214, 506 N.E.2d 1269(1987).Defendant's preliminary showing did not support that the officer included intentionally false statements in the warrant complaint.The trial court found that the officer reasonably relied on the information of the confidential informant after reviewing the officer's confidential informant file.We note that the argument of counsel about the distance defendant could travel in five minutes was nothing more than an opinion.The denial of a Franks hearing was not an abuse of discretion.

Defendant next argues that the State made improper remarks during closing argument, denying him the right to...