People v. Condon

• Decision Date: 27 March 1990
• Docket Number: No. 2-88-1069,2-88-1069
• Citation: 552 N.E.2d 413,195 Ill.App.3d 815
• Parties: , 142 Ill.Dec. 63 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Timothy CONDON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 413

552 N.E.2d 413

195 Ill.App.3d 815, 142 Ill.Dec. 63

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Timothy CONDON, Defendant-Appellant.

No. 2-88-1069.

Appellate Court of Illinois Second District.

March 27, 1990.

Rehearing Denied April 27, 1990.

George P. Lynch (argued), George Patrick Lynch, Ltd., Chicago, for Timothy Condon.

James E. Ryan, DuPage County State's Atty., Wheaton, William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Elgin, Mary Beth Burns (argued), State's Attys. Appellate Service Com'n, Elgin, for People.

Justice REINHARD delivered the opinion of the court:

Defendant, Timothy Condon, was indicted in the circuit court of Du Page County on one count of armed violence (Ill.Rev.Stat.1987, ch. 38, par. 33A-2), one count of unlawful delivery of more than 15 grams of a substance containing cocaine (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401(a)(2)), one count of unlawful possession with the intent to deliver more than 15 grams of a substance containing cocaine (Ill.Rev.Stat.1987 ch. 56 1/2, par. 1401(a)(2)), one count of unlawful possession with the intent to deliver more than 30 grams but not more than 500 grams of a substance containing cannabis (Ill.Rev.Stat.1987, ch. 56 1/2, par. 705(d)), one count of conspiracy to deliver 15 grams or more of a substance containing cocaine (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1405(a)), one count of narcotics racketeering (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1654(a)), and one count of unlawful delivery of 30 grams or more of a substance containing cocaine (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401(a)(2)). Following a bench trial, defendant was found guilty of the first four counts and not guilty of the latter three. He was sentenced to 12 years' imprisonment on the armed violence conviction, 12 years' imprisonment on the possession with intent to deliver cocaine conviction, 12 years on the delivery of cocaine conviction, and 3 years on the possession with intent to deliver marijuana conviction, with all sentences to run concurrently.

The following issues are raised on appeal: (1) whether the failure of the police to knock and announce prior to executing the search warrant for defendant's residence renders the search of defendant's residence unreasonable; (2) whether defendant was proved guilty beyond a reasonable doubt of the two counts charging possession with intent to deliver cocaine and possession with intent to deliver marijuana; (3) whether defendant was proved guilty beyond a reasonable doubt of armed violence; (4) whether defendant was proved guilty beyond a reasonable doubt of unlawful delivery of more than 15 grams of a substance containing cocaine; (5) whether the trial court erred in denying defendant a Franks hearing; (6) whether the trial court erred in denying defendant's motion to dismiss and his motion in arrest of judgment as to the armed violence count; and (7) whether the trial court erred in admitting testimony of unrelated criminal conduct.

On November 6, 1987, at approximately 6:45 p.m., agents of the Du Page County Metropolitan Enforcement Group (DuMEG) executed a search warrant on a residence located at 1 N. 535 Swift Road, Lombard, Illinois. Defendant resided at that address, but the home was owned by defendant's brother, Bernard J. Condon. Bernard Condon was a codefendant with defendant, but was a fugitive at the time of defendant's trial.

According to the complaint for search warrant, prepared by DuMEG agent Barbara Durnil, Agent Charles Dvorak was informed by Roger Trenton that Trenton had purchased cocaine on several occasions from Bernard Condon and defendant at the 1 N. 535 Swift Road residence. Trenton also told Dvorak that defendant and his brother would distribute cocaine at the residence between 6 p.m. and 9 p.m. According to Trenton, there were two closed circuit television cameras and a police scanner to monitor traffic near the residence and there were several weapons located in the residence to protect the cocaine and currency.

The complaint further states that on June 10, 1987, Dvorak completed a purchase of cocaine by sending Trenton into the residence, where he purchased cocaine from defendant. Trenton told Dvorak that the sale occurred in the second-floor office of the residence. According to Dvorak, while at defendant's residence on June 10, 1987, he observed two surveillance cameras, one at the front door and one at the rear door. Dvorak also observed a police radio scanner on the kitchen counter as he was sitting in his vehicle in the driveway.

The complaint for search warrant also stated that an individual named Ben Adams, who sold cocaine to Agent Durnil, had indicated that his source was located at 1 N. 535 Swift Road, defendant's residence.

The defendant's evidence, adduced at the hearing on defendant's motion to suppress evidence, indicates that defendant was in the kitchen of the residence at the time the police executed the warrant. According to defendant, the police did not knock, use the doorbell, or announce themselves. Defendant heard two loud bangs, and at least a dozen police officers, whom defendant described as SWAT officers, forcibly entered the house.

Defendant admitted in cross-examination that there is a surveillance camera at both the front and back doors of the house and a monitor in the kitchen capable of switching from one camera to the other. According to defendant, the surveillance cameras were on at the time the police entered his home, but it was too dark to see anything. Defendant further admitted that he had 13 guns in the house, including a loaded revolver in his bedroom. Most of the weapons were shotguns that defendant said he used for hunting.

The State only offered the complaint for search warrant at the suppression hearing. The trial court denied defendant's motion to suppress, finding that there were exigent circumstances which justified the officers' failure to knock and announce prior to entering the home.

The State did not contend below nor does it on appeal that the police officers knocked and announced in this case. The evidence at the suppression hearing and the trial establishes that they did not knock and announce, but, rather, gained entrance by using a battering ram against the front door.

At trial, Officer Michael Sullivan testified that on November 6, 1987, while conducting surveillance on the Condon residence, he observed Agent Durnil and Ben Adams arrive at the residence. Adams exited the vehicle, entered the residence, exited the residence, and reentered Durnil's vehicle. Durnil then drove away, and Sullivan was advised by radio shortly thereafter that Adams was arrested with cocaine in his possession. He then observed the team of officers execute the search warrant of defendant's premises. They wore bulletproof vests, had special weapons, and used a ram and access equipment.

Ben Adams testified that he went with Durnil to the house on November 6, 1987, to purchase an ounce of cocaine. He met defendant and gave him $1,900 in prerecorded money. Defendant counted the money, and his brother, Bernard Condon, went upstairs. About 5 to 10 minutes later, defendant's brother returned to the kitchen and handed what Adams assumed to be an ounce of cocaine to defendant. Defendant in turn placed the substance on the counter and said "[t]here you go." The substance was later determined by laboratory analysis to contain cocaine. Defendant placed the $1,900 in his front pocket after counting it. At the time of defendant's arrest in the kitchen, the prerecorded money was found on the floor near defendant. A search of the house revealed cocaine and marijuana in the second-floor office.

Joseph Nebren, testifying for the State, stated that on at least one occasion in 1987 he had purchased a white, powdery substance he believed to be cocaine from defendant and that the transaction occurred in an office located on the second floor of the Condon residence. On cross-examination, Nebren admitted lying to the grand jury when he testified that he had never purchased cocaine from defendant and that he was now testifying pursuant to a grant of immunity.

Karen Schaeffer, defendant's fiancee, testified for defendant that she lived with defendant at 1 N. 535 Swift Road for about three months and that Bernard Condon owned the house. According to Schaeffer, there are four bedrooms upstairs, one of which was Bernard Condon's office, and that the office was kept locked all the time. Bernard Condon had the only key to the door and to the lockbox which contained the cocaine. According to Schaeffer, defendant did not have a key to either the office or the lockbox. She never saw defendant open the office door or the lockbox, and Bernard Condon was the only person to open the office door or open the lockbox. Defendant did not testify or offer any other witnesses.

We first address defendant's contention that the unannounced entry by the law enforcement officers was constitutionally unreasonable under the circumstances. Although the failure of law enforcement officers to announce their authority and purpose prior to entering a dwelling is not a per se constitutional violation, the presence or absence of such an announcement is an important consideration in determining whether a subsequent entry to arrest or search is constitutionally reasonable. (People v. Saechao (1989), 129 Ill.2d 522, 531, 136 Ill.Dec. 59, 544 N.E.2d 745; People v. Wolgemuth (1977), 69 Ill.2d 154, 156, 13 Ill.Dec. 40, 370 N.E.2d 1067.) The purpose of the knock-and-announce rule is to notify the person inside of the presence of the police and of the impending intrusion, give that person time to respond, avoid violence and protect privacy as much as possible. (People v. Ouellette (1979), 78 Ill.2d 511, 518, 36 Ill.Dec. 666, 401 N.E.2d 507.) Exigent circumstances may, in a proper case, excuse the failure of officers to knock and announce before entering a dwelling to...