People v. Fragoso

• Decision Date: 18 January 1979
• Docket Number: 78-1879,Nos. 78-1433,s. 78-1433
• Citation: 386 N.E.2d 409,68 Ill.App.3d 428,25 Ill.Dec. 138
• Parties: , 25 Ill.Dec. 138 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Felipe FRAGOSO and Julia Garcia, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 409

386 N.E.2d 409

68 Ill.App.3d 428, 25 Ill.Dec. 138

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Felipe FRAGOSO and Julia Garcia, Defendants-Appellees.

Nos. 78-1433, 78-1879.

Appellate Court of Illinois, First District, Fourth Division.

Jan. 18, 1979.

Bernard Carey, State's Atty., Cook County (Lee T. Hettinger and Joan S. Cherry, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellant.

Sam Adam, Edward M. Genson, John R. De Leon, Chicago, (Marvin I. Bloom, Chicago, of counsel), for defendants-appellees.

ROMITI, Justice:

This is a State appeal, pursuant to Supreme Court Rule 604(a)(1) (Ill.Rev.Stat.1977, ch. 110A, par. 604(a)(1)), of a trial court order quashing a search warrant and suppressing evidence obtained by the execution of that warrant. We must determine whether that warrant described with sufficient particularity the place to be searched and the things to be seized.

The affidavit in the complaint for the search warrant states:

"I, Off. Thomas West # 4573, a Police Officer in the City of Chicago and currently assigned to the Gang Crimes Investigations Division/South, had occassion (sic) to converse with a confidential and reliable informant regarding the illegal sale of heroin within the City of Chicago. During the course of the first conversation which took place on 4 Apr 78 the informant related that earlier in the day the informant had been with a male Mexican known to him as Felipe Fragoso and they had met in a tavern in the vicinity of Division and Ashland. He further related that upon meeting with Fragoso he had purchased an ounce of heroin from Fragoso for the price of $650.00 USC as they had arranged previously by telephone. During the course of this conversation the informant had explained that Fragoso had recently returned from Mexico with a shipment of heroin and that he was currently staying with his girl freind (sic) in her first floor apartment at 3445 W. Diversy (sic) and that her name was Julie (sic) Garcia. The informant further stated that Fragoso has whatever amount of heroin the informant needed for at least the next several weeks.

As a result of the information received an investigation was initiated and a fixed and rolling surveillance was conducted during the period of 4 to 6 Apr 78. A check of the utilities for the first floor of 3445 W. Diversy (sic) showed that the subscriber was one Julie (sic) Garcia. Further during the course of the surveillances Felipe Fragoso was observed to enter and leave the location on numerous occassions (sic) and was recognized by members of the investigative team from previous investigations. On seven (7) seperate (sic) occassions (sic) Fragoso was observed meeting with, or receiving at the door of the apartment located at 3445 W. Diversy (sic), known narcotics traffickers while he was under surveillance. On two (2) occassions (sic) Fragoso was seen accepting monies from traffickers of heroin and handing them objects in return.

On 6 Apr 78 during the early evening hours the Investigative team was again contacted by this same confidential informant who related that he had just met with Fragoso at the first floor apartment at 3445 W. Diversy (sic) and while there he purchased two (2) ounces of heroin from Fragoso. He stated that Fragoso had entered the kitchen of the apartment and returned to the frontroom with a large plastic bag containing numerous smaller bags of heroin. At this time Fragoso removed two of the bags and returned the larger bag into the kitchen.

When asked how he knew this substance to be heroin the informant related that he snorted (inhaled) a portion of one of the bags and received a familiar reaction that he has received from heroin in the past.

I, Off. Thomas West, have known this informant for the last three and one-half years. During this time this informant has supplied information on numerous occassions (sic) relative to violations of the narcotics laws of the State of Illinois. On the last five occassions (sic) that information has been supplied by this informant at least one arrest has been effected and contraband has been recovered on each occassion (sic). This contraband was submitted and analyzed by qualified chemists of the Chicago Police Department and found to be narcotic substances on each of these occassions (sic).

As a result of the information received and the subsequent investigation, I, Off. Thomas West, believe that heroin can now be found at the location of 3445 W. Diversy (sic), first floor aparment (sic) under the control of a male mexican known as Felipe Fragoso."

The affidavit was signed by Officer West. The search warrant authorized a search of "Felipe Fragoso M/Mex. and his temporary residence at 3445 W. Diversy (sic), 1st fl. apartment" and the seizure of "Heroin, a narcotic drug, and all other narcotic drugs, narcotics paraphernalia and instrumentalities used in the furtherance of the offense", that offense being "Illegal Possession of a Controlled Substance (Heroin)."

No testimony was adduced at the hearing on defendants' motion, but there was a stipulation between the parties to certain facts alleged in that motion. In pertinent part the stipulated facts were that on April 7, 1978, in the early morning hours, police officers entered defendant Julia Garcia's home at 3445 West Diversey, Chicago, Illinois, searched that home, and seized certain private papers and a quantity of powder. The search and seizure was pursuant to the search warrant at issue.

At the conclusion of the arguments of counsel, the trial judge stated:

"I am again examining the complaint for search warrant and in the complaint for search warrant 3445 West Diversey, first floor apartment, is set forth six times and nowhere in the complaint for search warrant does 3445 West Diversey, is it stated to be or referred to as being in Chicago, Cook County, Illinois.

"3445 West Diversey is set forth once in the search warrant and nowhere in the search warrant does it say or refer to it as being in Chicago, Cook County, Illinois.

"I put the question earlier, and I don't know of any case where from any jurisdiction that upholds the validity of a warrant where the city, the county or the State is not referred to in it as giving a location to be searched.

"The Constitution requires that the premises be particularly described and in the absence of the county, city or State being stated, I find and hold that it is not particularly described as is constitutionally required.

"I also hold and find that the complaint for the search warrant and the search warrant demanding the seizure of the narcotic paraphernalia and instrumentalities used in the furtherance of the offense, in my judgment do not authorize anyone to search the house for private papers, receipts, documents and for the reasons stated by me as well as the reasons stated in the complaint on the motion, I will sustain the motion to quash the search warrant and suppress the evidence."

I.

The purpose of the requirement of particularity of description in search warrants is to prevent the use of general warrants, which would give the police broad discretion as to where they may search and what they may seize. (Warden v. Hayden (1967), 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782; Marron v. United States (1927), 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231.) Given this reason for the requirement, our courts have determined that a warrant is sufficiently descriptive of the premises to be searched if it enables the police, with reasonable effort, to identify the place intended. Steele v. United States (1925), 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757; People v. Watson (1962), 26 Ill.2d 203, 186 N.E.2d 326; People v. Moore (1970), 124 Ill.App.2d 204, 260 N.E.2d 255.

Errors in addresses and, indeed, omissions as to portions of addresses are not Per se fatal to the validity of a warrant. Thus in People v. Watson (1962), 26 Ill.2d 203, 186 N.E.2d 326, a search was upheld even though the warrant incorrectly described the street address of the apartment to be searched as 2300 S. State when it was actually 2310 S. State. The court looked to other information available to the officer executing the warrant, namely that the building was on the southwest corner of 23rd and State, and concluded that the warrant was sufficiently specific in its description to allow identification of the place to be searched. In People v. Hicks (1977), 49 Ill.App.3d 421, 7 Ill.Dec. 279, 364 N.E.2d 440, no street number was given for a hotel in which certain rooms were to be searched, but the address was given as the Arlington Park Towers Hotel, Euclid and Rawhling Roads, Arlington Heights, Cook County, Illinois. This court held the warrant valid, noting that there was no evidence to show that another hotel by that name existed at that intersection, so that no mistake as to the hotel to be searched was possible. And in People v. Mecca (1971), 132 Ill.App.2d 612, 270 N.E.2d 456, the warrant specified the street address as 3322 South Western Boulevard, the search was conducted at 3322 South Western Avenue. The court found the warrant to be sufficiently specific, noting that Western Boulevard was separated from Western Avenue by a 53 foot parkway, there was no such address as 3322 South Western Boulevard, and a description in the affidavit for the warrant matched that of the house searched.

As we have noted, one factor considered in Mecca was the information in the affidavit for the search warrant. Reference to this document as a factor in determining the validity of a search warrant is clearly permissible where the affidavit is attached to the warrant, incorporated by reference, or as is the case here, where the officer who signed and swore to the affidavit also executed the search warrant. ¹ (People v. Redmond (1976), 43 Ill.App.3d 682, 2 Ill.Dec. 227, 357 N.E.2d 204; People v. Staes (1968), 92 Ill.App.2d 156, 235 N.E.2d 882.) Defendants have at no time challenged the...