People v. Carodine

• Decision Date: 21 May 2007
• Docket Number: No. 1-05-2775.,1-05-2775.
• Citation: 869 N.E.2d 869
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald CARODINE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

869 N.E.2d 869

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald CARODINE, Defendant-Appellant.

No. 1-05-2775.

Appellate Court of Illinois, First District, First Division.

May 21, 2007.

Rehearing Denied July 5, 2007.

Office of the State Appellate Defender, Chicago (Aliza R. Kaliski, of counsel), for Appellant.

State's Attorney, Cook County, Chicago (James E. Fitzgerald, Manny Magence, Annette Gonzalez Thornton, of counsel), for Appellee.

Justice ROBERT E. GORDON delivered the opinion of the court:

Defendant Donald Carodine was convicted of two counts of possession of a controlled substance following a bench trial. A sentencing hearing was conducted where mitigation and aggravation were presented. The trial court sentenced defendant to 2 concurrent 2-year terms in the Illinois Department of Corrections, with 115 days' credit for time served while awaiting sentencing, and assessed fines and fees consisting of a $5 Spinal Cord Injury Paralysis Cure Research Trust Fund assessment, a $500 controlled substance fine, a $100 trauma fund fine, and a $20 Violent Crime Victims Assistance Fund fine. Defendant filed a motion for a new trial, which was denied. Defendant appeals arguing that (1) the trial court erred by denying his pretrial motion to suppress evidence, (2) the State failed to prove him guilty beyond a reasonable doubt, (3) his conviction should be reversed because the trial court misstated the evidence in its findings, (4) the $5 fee for the Spinal Cord Paralysis Cure Research Trust Fund is unconstitutional, (5) the trial court improperly assessed a $20 Violent Crime Victims Assistance Fund fine, and (6) the $500 controlled substance fine and the $100 trauma fund fine should be offset by a $5-per-day presentence credit for the 115 days he was incarcerated prior to sentencing.

BACKGROUND

At or around noon on April 26, 2005, Officers Louis Rangel and Alberto Garza set up surveillance in response to an anonymous tip that an African-American male in a red T-shirt and a red hat was selling narcotics at a location on north Monitor Avenue in Chicago. Rangel was designated as the surveillance officer for the operation. Defendant was standing on the street wearing a red T-shirt and a red hat and was visible from Rangel's surveillance point. From his vantage point, Rangel saw an unknown black man approach defendant near Wabansia Avenue between Monitor and Mayfield Avenues, engage in a conversation with defendant and give defendant money. After taking the money, defendant went to the basement entrance of the north Monitor address, a three-unit apartment building, reached into a dryer vent protruding from the exterior wall of the building, removed a bag from which he removed a small item, and returned the bag to the vent. Defendant returned to the man that gave him the money and handed him the small item that he removed from the bag that was in the dryer vent.

Believing that he witnessed a drug transaction, Rangel broke surveillance and gave Garza a description of the buyer. Rangel approached defendant, while Garza tried to locate the buyer, which he was never able to do. After unsuccessfully trying to locate the buyer, Garza returned to where defendant and Rangel were and conducted a field interview of defendant. While Garza interviewed defendant, Rangel went to the building on north Monitor, reached into the vent and recovered the bag from where defendant removed the item that he gave to the unknown man. The bag contained 9 small bags of folded tinfoil containing a white powdery substance and 17 small bags containing a white rock-like substance. Rangel returned to where Garza and defendant were, placed defendant under arrest, and recovered $184 from him. The officers did not have a search warrant to search the building, which is where defendant resided. Neither officer maintained a visual on the dryer vent from the time they broke surveillance until the time Rangel recovered the narcotics. The officers testified that two or three minutes elapsed between the time they broke surveillance and recovered the narcotics.

The officers inventoried the contents of the bag discovered in the dryer vent in a heat-sealed container. The recovered narcotics, inventoried under number 10522872, tested positive for 1.3 grams of heroin and 1.2 grams of cocaine.

Defendant was charged by information with two counts of possession of a controlled substance with intent to deliver. Defendant filed a pretrial motion to quash his arrest and suppress the evidence retrieved from the dryer vent, arguing that the police officers had conducted a warrantless search because the dryer vent was part of his home. At the hearing to quash arrest and suppress evidence, defendant testified that he lived with his mother in the basement apartment on north Monitor on April 26, 2005, that the dryer vent led into his apartment, and that the drugs were not his. The judge denied defendant's motion finding that the dryer vent was accessible from a common area and therefore that Rangel did not break the threshold of the home by reaching into the vent. In denying defendant's motion, the trial court relied on the testimony of the two officers and photographs taken of the subject property offered into evidence by the defendant. The trial court stated:

"Officer Rangel has testified * * * that he observed the defendant after receiving information that a male black with a red hat and red shirt was selling narcotics, he saw him on the corner of Wabansia and Mayfield.

According to the photographs entered into evidence by the defendant, the building in question is the corner, it's a two-flat with a basement, and there's [an] open back porch area that comes from the second floor down to the first floor and then a few steps down into the basement. As you're going down into that basement, there looks like either a water line coming out of that wall and a vent coming out of that wall.

Officer Garza testifies that after seeing the hand-to-hand transaction his partner, Officer Rangel, informed him of that, they both approached. Officer Garza goes for a field interview of the defendant. Based on what he had seen, he does a protective pat-down search where he finds nothing. At that time Officer Rangel goes back to the area where he saw the defendant go earlier to the area in the basement, going down into that basement into the vent and remove from that vent a brown paper bag where narcotics are found.

The argument the defendant makes is that the officers were proper until they made that search of that vent. The description [is] that [the] vent is part of the home.

In regards to this, I don't believe that the vent is part of the home. I believe the stairs, stairwell is a common area for all parties. And as you look at this photo, without having any information of where the defendant lives, that could be considered a basement area where both the first and second floor were using.

Based on the testimony of the defendant, though, he lives in that basement area. That still doesn't make that outside wall, and I repeat, that's an outside wall of a building, doesn't make it any less part of that property. Therefore, when the officer saw him go to that vent, place a bag in there, I believe the officers were well in their rights to take a look at that. They did not enter the threshold of the property, they didn't open the door, they looked at something outside the property. Therefore, the motion to quash arrest and suppress evidence will be denied."

The parties proceeded to bench trial, where they stipulated to Rangel's and Garza's testimony, stipulated that "a proper chain of custody was maintained at all times" and also stipulated to the chemical composition of the recovered narcotics. As noted, the recovered narcotics, inventoried under number 10522872, tested positive for 1.3 grams of heroin and 1.2 grams of cocaine. The inventory number did not refer to the brown paper bag in which the drugs were found. Also, the inventory number was incorrectly referred to as 10522972 in one sentence of the stipulation. The stipulation also stated that the items tested by the forensic scientist contained 17 bags of suspected crack cocaine as opposed to the 9 bags containing a white powdery substance and 17 bags containing a white rock-like substance inventoried by the officers. Despite these discrepancies, the parties stipulated that inventory number 10522872 contained 9 small bags containing folded tinfoil with a white powder and 17 small bags containing a white rock-like substance.

The trial judge found defendant guilty of possession of heroin and cocaine, but did not find that the defendant intended to deliver the narcotics. The trial court sentenced defendant to 2 concurrent 2-year sentences in the Illinois Department of Corrections, with 115 days' credit toward his sentence, and assessed fines and fees, including a $5 Spinal Cord Paralysis Cure Research Trust Fund assessment, a $500 controlled substance assessment, a $100 trauma fund fine, and a $20 Violent Crimes Victims Assistance Fund fine.

ANALYSIS

Defendant argues that the trial court erred by denying his motion to suppress evidence discovered by the police in the dryer vent leading from inside his home to the common area directly outside his home. Specifically, he argues that the police officer's action in retrieving the drugs from the dryer vent violated his right under both the United States and Illinois Constitutions to be free from unreasonable searches. U.S. Const., amend. IV; Ill. Const.1970, art. I, § 6.

It is undisputed that the police did not have a warrant to search the apartment building where defendant resided. It also appears from the record, and the State appears to concede because the State does not argue the point in its brief, that no warrant exception applies to this case. Accordingly, the disposition of this issue turns on the answer to whether defendant had a reasonable expectation...