People v. Ferral

• Citation: 921 N.E.2d 414
• Decision Date: 23 December 2009
• Docket Number: No. 2-07-0553.,2-07-0553.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Benjamin FERRAL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

921 N.E.2d 414

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Benjamin FERRAL, Defendant-Appellant.

No. 2-07-0553.

Appellate Court of Illinois, Second District.

December 23, 2009.;

Thomas A. Lilien, Deputy Defender, Office of State Appellate Defender, Elgin,

IL, Dev A. Parikh, Attorney At Law, Greenwood, IN, for Appellant.

James P. Hursh, Boone County State's Attorney, Belvidere, IL, Lawrence M. Bauer, Deputy Director, State's Attorney Appellate Prosecutor, Elgin, IL, Rita Kennedy Mertel, State's Attorneys Appellate Prosecutor, Ottawa, IL, for Appellee.

Justice JORGENSEN delivered the opinion of the court:

Defendant, Benjamin Ferral, was charged with two counts of unlawful possession of a fraudulent identification card (15 ILCS 335/14B(b)(1) (West 2004)). He moved to quash his arrest and suppress evidence, based on the warrantless, nonconsensual police entry into the apartment where he and the cards were found. The trial court denied the motion, and defendant was convicted following a stipulated bench trial. The court sentenced defendant to 2 years' conditional discharge and 14 days in jail and ordered him to pay a $500 fine. Defendant appeals the denial of his motion to quash and suppress. We affirm.

I. BACKGROUND

On August 11, and September 1, 2006, a hearing was held on defendant's motion to quash his arrest and suppress evidence. Officer David Dammon, a Belvidere police officer, testified that, on June 21, 2005, he encountered defendant at the Courtyard Apartments, drinking alcohol from an open container. Defendant denied living on the property. Dammon, who when off duty provides security services for the Courtyard Apartments, informed defendant that he was going to put his name on the "banned" list and that defendant was not to return to the property. Defendant spoke in English, and Dammon did not have trouble understanding him.

Todd Moore, a Belvidere police officer, testified that, on June 24, 2005, he learned from Dammon that two people, defendant and Julio Ferral, defendant's cousin, were trespassing at the Courtyard Apartments and that the apartment managers knew the trespassers by name. Jaime Condor, one of the managers, had contacted Dammon, stating that the suspects were on the property and that the door to apartment 4 at the 2005 Lakeshore building had been kicked in. Condor further told Dammon, but not Moore, that defendant and Julio had been sleeping at the apartment. Dammon contacted Moore and asked him to go to the property.

Moore testified that he had information that both Dammon and Officer Brandon Parker had instructed defendant and Julio to stay away from the apartment complex. According to Moore, Parker had information from the suspects that they did not live at the property. Parker testified that, on June 23, 2005, he ticketed defendant for obstruction of a front windshield and for driving without a license. Defendant spoke English, and Parker had no trouble understanding him. Defendant told Parker that he lived at 412 North Main in Elburn. He did not mention the Lakeshore building or Courtyard Apartments.

Moore went to the apartment complex and met with the managers, Condor and Joey Sanfillipo, in a common area close to the apartments. The managers told Moore that, earlier that day, they had observed two men who were barred from the complex run inside apartment 4 at the 2005 Lakeshore building when Sanfillipo and Condor approached. Moore went to the apartment; the front door was wide open. He knocked on the door and announced himself. There was no response, and he entered the apartment. Moore suspected that the men were trespassing or burglarizing the unit; he did not have any information that the men had been sleeping there.

Once inside the apartment, Moore observed feet protruding from a closet in one of the bedrooms. Moore ordered the person, in English, to come out, and Julio came forward. Moore handcuffed him and brought him to the living room. Defendant then came out of the bathroom, and Moore handcuffed him. There were no other individuals in the apartment. Moore explained that he handcuffed both men right away for safety reasons because he did not know who they were, he was there by himself with the two managers, and he had information that the men were trespassing.

While waiting for another officer to arrive, Moore asked the men for identification. Julio had a wallet on his person, and defendant nodded toward the bedroom and "indicated" that he had identification there. They walked to the bedroom, defendant "indicated" toward a box near a bed, and Moore found a wallet inside the box. Inside the wallet, Moore found a resident alien card that he later discovered was fraudulent, a document he suspected was a Mexican birth certificate, and a Social Security card. Moore suspected that the Social Security card was invalid, because the ink on it ran when it was moistened. Defendant told Moore that he lived in the apartment, but Moore understood from the managers that he did not.

As Moore waited for Officer Wilgus to arrive, Sergeant Mark Pollock arrived on the scene. Because Moore believed that he had probable cause that one or both of the suspects had committed trespass to land or trespass to the residence, Moore and Pollock transported the men to the public safety building. There, Moore arrested the men. Pollock contacted the place of business of Antonio Ferral, the person who lived in the apartment, to inquire whether defendant and Julio were allowed to be in the apartment.

Pollock, a Belvidere police shift supervisor, testified that, on June 24, 2005, he went to the Courtyard Apartments after he learned that Moore and Wilgus had detained two suspects there. Pollock and Condor went to Northwest Pallet, Antonio's employer, to investigate whether he had granted defendant and Julio permission to be there. Antonio, defendant's paternal cousin, stated that both Julio and defendant had permission to be in the apartment. Moore testified that he discovered after the arrests that Antonio was the apartment tenant.

Antonio testified that, on June 24, 2005, he had a lease for apartment 4. After Antonio's divorce, defendant, who was already living at the apartment, had invited Antonio to live there; as of June 2005, Antonio had been living at the apartment for more than one year. Defendant, Julio, and Moises Ferral, who were all cousins, lived in the apartment. Antonio explained that the door to the apartment was working at this time, although there was a small problem with the locking mechanism. Antonio testified that defendant's name was on the lease. Antonio had his name added to the lease so that he could register his truck and obtain a parking sticker. According to Antonio, defendant paid everyone's rent on more than one occasion. Antonio later clarified that he did not know if his name was on the lease, but he verified that he registered his name with apartment management.

Defendant testified that, on June 24, 2005, he lived at apartment 4 at the Lakeshore building. He paid the June 2005 rent, but the manager did not put his name on the receipt. Defendant stated that he lived at the apartment for about one year. He conceded that, one day before he was arrested, Dammon told him that he was not supposed to be on the property. Defendant could not tell Dammon in English that he lived at the apartment, although he tried to do so in Spanish. Defendant denied telling Parker in English that he lived in Elburn.

Condor testified that she is the leasing agent for Waterford Property Management, which owns the Courtyard Apartments. She also manages the apartments. Condor testified that Moises, defendant, and Alfonso Ferral (defendant's brother) had applied to be tenants at apartment 4 at 2005 Lakeshore, but only Moises and Alfonso were on the original lease, because defendant's application had been denied. The lease term was July 27, 2004, through August 31, 2005.¹ Through a "request for status change," the tenants had asked for Antonio to live with them. Antonio had the current lease for the apartment.

Condor stated that defendant was never allowed to live on the property or to be on the property. Condor explained that, as a result of several incidents involving defendant, he was barred from the property. Both Condor and Belvidere police officers had told defendant that he was "no longer" allowed on the property. In June 2005, defendant had thrown beer bottles across the apartment parking lot and had once kicked in a door. Also, twice before, Condor had defendant removed from the property. Before that, if defendant saw either Condor or "Joe" come on the property, he would get in a car and drive away.

Condor further testified that Antonio or Moises usually paid the rent. However, she could not recall who paid the June 2005 rent. She stated that defendant had never paid the rent. According to Condor, defendant speaks "perfect" English. Antonio and Moises do not speak English. Condor denied knowing that defendant was related to Antonio and Moises. In the past, defendant had provided Condor with different names, including his actual name.

Condor further testified that, on the morning of June 24, 2005, a woman who lives across from 2005 Lakeshore told Condor that someone was breaking into apartment 4. Condor saw defendant and Julio kicking in the apartment door. Condor and Sanfillipo went to the apartment. Once there, Condor saw defendant and Julio jumping out of a window. Condor further testified that apartment maintenance men restrained the intruders, and the police arrived. Condor told the police that defendant had broken into the apartment. She did not tell them that he had been sleeping there.² The door frame to the apartment was broken.

After reviewing defense exhibit No. 2, a purported lease agreement showing defendant as a tenant, Condor testified that it was an altered document because "2700 Lakeshore" had been crossed out and marked to be "2005 Lakeshore...