People v. Balark

• Decision Date: 20 November 2019
• Docket Number: No. 1-17-1626,1-17-1626
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Deric BALARK, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 171626

147 N.E.3d 811

439 Ill.Dec. 136

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Deric BALARK, Defendant-Appellant.

No. 1-17-1626

Appellate Court of Illinois, First District, THIRD DIVISION.

November 20, 2019

James E. Chadd, Patricia Mysza, and Joseph Michael Benak, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Janet C. Mahoney, and David H. Iskowich, Assistant State's Attorneys, of counsel), for the People.

JUSTICE McBRIDE delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Deric Balark was found guilty of unlawful use or possession of a weapon by a felon (UUWF). The trial court subsequently sentenced defendant to a term of six years in prison.

¶ 2 Defendant appeals, arguing that (1) his trial counsel was ineffective for failing to file a motion to quash arrest and suppress evidence because the police lacked probable cause to arrest defendant and (2) the State failed to prove defendant guilty of UUWF beyond a reasonable doubt.

¶ 3 In May 2016, defendant was indicted on two counts of UUWF, four counts of aggravated unlawful use of a weapon (AUUW), and one count of possession of cannabis. The State later dismissed the possession of cannabis charge. Defense counsel filed a motion to quash defendant's arrest and suppress evidence, arguing that defendant was arrested without a valid arrest warrant and his conduct prior to the arrest did not constitute probable cause that he had committed or was about to commit a crime. However, immediately prior to trial, counsel withdrew the motion and proceeded to a bench trial. The following evidence was presented at defendant's February 2017 bench trial.

¶ 4 Officer Leonidas Ferreras testified that in April 2016, he was assigned to the Fifth District tactical team with the Chicago Police Department. On April 23, 2016, at approximately 7 p.m., he was working with Officer Raske¹ and Officer Sharita Edwards. The officers were in plain clothes with vests and duty belts and driving an unmarked vehicle. Their duties were to patrol the area and attempt to suppress gang and narcotic violence. Officer Raske was driving with Officer Ferreras in the front passenger seat and Officer Edwards in the back seat. Officer Ferreras testified that the sun was still out and "artificial lighting was starting to turn on."

¶ 5 At approximately 7:10 p.m., Officer Ferreras observed a red minivan at the intersection of 107th Street and Michigan Avenue in Chicago when the minivan disobeyed a red light. The officers then curbed the vehicle at approximately 10519 South Michigan Avenue. He and the other officers exited the patrol vehicle. Officer Raske approached the driver's side of the minivan while Officer Ferreras approached the passenger side with Officer Edwards "slightly behind" him. As he approached the minivan, Officer Ferreras made the following observation:

"I observed the gentleman to the right of me in the tan shirt with a white long-sleeve undershirt place what I believe to be a black semi-auto pistol with an extended magazine protruding from the magazine as well into the passenger side glove compartment."

¶ 6 Officer Ferreras identified defendant in court as the person he observed in the passenger seat of the minivan. He observed the firearm in defendant's hand and the extended magazine drew his attention. He estimated that he was approximately 5 to 10 feet away when he observed defendant place the weapon in the glove compartment.

¶ 7 Officer Ferreras testified that there were three other occupants in the minivan. He gave all occupants verbal directions to exit the vehicle, and they complied. As the occupants exited the vehicle, Officer Ferreras "noticed that the environment was getting very hostile." He observed members of the community coming out of their homes and gathering on the sidewalk. He stated that this occurred "very quickly" after the vehicle occupants exited the vehicle. He testified that his "main mission" was to watch the hands of the vehicle occupants as well as ensure the officers' safety and to conduct an investigation. The environment became "very tense" and "members of the community started becoming very hostile to us; yelling out profanities and very irate." Specifically, he described an older middle-aged black female who attempted to enter the area where the officers were conducting their interviews. Due to the situation, Officer Ferreras and his partners requested backup assistance and decided to continue the investigation at the Fifth District police station. While at the scene, a small bag of cannabis was found on another occupant of the minivan.

¶ 8 Officer Ferreras testified that he did not alert his partners about his observation of defendant with a weapon while on the scene. He explained that due to the hostile environment, he did not believe it was the "right or appropriate time" to converse with his officers about the weapon in the vehicle. He estimated that the assisting vehicles arrived on scene in no more than 5 to 10 minutes. All of the vehicle occupants were transported to the Fifth District. The red minivan was driven by Officer Edwards to the Fifth District. Officer Ferreras estimated that around 10 to 15 minutes had passed from when the vehicle was curbed to when the vehicle was being taken to the Fifth District.

¶ 9 Officer Ferreras did not alert Officer Edwards to the weapon when she entered the vehicle because of the hostile environment. He believed that the safety of the officers and the vehicle occupants was a priority. According to the officer, more people started coming out to the scene and asking what the officers were doing and why. From the time the officers arrived on the scene to when Officer Edwards entered the vehicle, Officer Ferreras did not observe anyone else enter the front passenger area of the vehicle.

¶ 10 Officer Ferreras rode to the Fifth District with Officer Raske. While driving to the Fifth District, Officer Ferreras notified Officer Raske about his observation of defendant placing a weapon in the glove compartment. He observed Officer Edwards park the vehicle at the police station. He then began a search of the vehicle with Officer Raske. Officer Ferreras searched the glove compartment and recovered "a black sub-compact Glock 26 Gen 4, nine millimeter with an extended magazine containing 12 live rounds." He also recovered a bag containing "a greenish/brown plant-like substance" that he believed to be cannabis. While at the police station, a custodial search of defendant was done by Officer Ferreras and Officer Raske. The officers recovered a little over $2700 in cash.

¶ 11 On cross-examination, Officer Ferreras testified that he believed he had his weapon drawn as he approached the minivan and it was "fair to say" his partners also had their weapons drawn. He could not recall the position of his firearm. Officer Ferreras drew his weapon based on his observations of the traffic violation and the vehicle traveling "at a fast rate of speed on Michigan Avenue." The officer clarified that the vehicle was not fleeing the police.

¶ 12 Officer Ferreras stated that he directed the vehicle occupants to put their hands in the air at the same time he observed defendant place the weapon in the glove compartment. When the occupants exited the vehicle, the officer conducted a protective pat down and began his interview. However, the officer was not able to perform his typical interview procedures due to the hostile environment.

¶ 13 When asked why the vehicle occupants were taken to the police station if he had not found anything, Officer Ferreras answered as follows:

"As I mentioned, I observed your client place a handgun onto [sic ] the passenger side glove box. I later learned that the driver of the vehicle did not have a driver's license and he didn't have proof of the lease agreement. We also had another occupant in that vehicle who had a small portion of cannabis on his person, so the whole totality of everything; of all of the occupants and what we had and also the hostile environment that we were dealing with, we felt that it was more appropriate to continue this situation—- continue this investigation at the 5th District."

¶ 14 Officer Ferreras did not have an evidence technician take a photograph of where the weapon was recovered because it was not standard protocol. He could not recall how many additional police vehicles arrived on the scene after assistance was requested. He did not inform the assisting officers about his observation of the weapon. He denied that the weapon was recovered three and a half hours after the traffic stop. Officer Ferreras estimated that the weapon was recovered about a half an hour after the traffic stop. He admitted that the weapon was not inventoried until 10:40 p.m. On redirect, Officer Ferreras clarified that the first thing he did was search the vehicle and recover the weapon. He then continued his duties and processed defendant and the other occupants. On re-cross, Officer Ferreras testified that he did not submit the weapon for fingerprinting because he and Officer Raske had handled it without gloves. According to the officer, gloves are used if available and he did not have gloves when searching the vehicle at the Fifth District.

¶ 15 Following the officer's testimony, the State presented a stipulation of defendant's certified statement of conviction for robbery on November 13, 2012. The State also presented a stipulation that an employee from the Illinois State Police searched the Firearm Services Bureau on June 23, 2016, for defendant's name and date of birth. Her search indicated that defendant had never been issued a Firearm Owner's Identification Card (FOID) or a concealed carry license (CCL) in Illinois. The State then rested. Defendant moved for a directed finding, which the trial court denied.

¶ 16 Defendant presented a stipulation from Officer...