People v. Galdine

• Decision Date: 22 April 1991
• Docket Number: No. 2-90-0097,2-90-0097
• Citation: 571 N.E.2d 182,212 Ill.App.3d 472
• Parties: , 156 Ill.Dec. 595 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Nicholas GALDINE, Defendant-Appellant. Second District
• Court: United States Appellate Court of Illinois

Page 182

571 N.E.2d 182

212 Ill.App.3d 472, 156 Ill.Dec. 595

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Nicholas GALDINE, Defendant-Appellant.

No. 2-90-0097.

Appellate Court of Illinois,

Second District.

April 22, 1991.

Rehearing Denied May 28, 1991.

Douglas R. Roberts, Law Offices of Douglas R. Roberts, Waukegan, for Nicholas Galdine.

Michael J. Waller, Lake County State's Atty., Waukegan, William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Mary Beth Burns, State's Attys. Appellate Service Com'n, Elgin, for the people.

Justice WOODWARD delivered the opinion of the court:

Defendant, Nicholas Galdine, appeals his convictions of unlawful possession of cocaine (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1402) and possession with intent to deliver cocaine (Ill.Rev.Stat.1988 Supp., ch. 56 1/2, par. 1401.2(2)). The sole issue on appeal is whether the denial of defendant's motion to suppress the evidence was against the manifest weight of the evidence.

Defendant was charged by indictment with unlawful delivery of cocaine (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1401(a)(2)) in addition to the other two offenses. All three charges arose out of a raid on defendant's office on March 4, 1989. Defendant filed a motion to suppress the evidence obtained by a warrantless search of his office. Defendant also filed a motion to suppress the contents of several recordings made of conversations of an informant, Alan Lothar.

The following facts were adduced from the evidence presented at the hearing on the motion to suppress. Sylvester Hampton, a member of the Lake County Metropolitan Enforcement Group (LMEG), met Lothar in February 1989. Lothar was working for LMEG, making purchases of cocaine from defendant. By the end of February, Lothar had purchased cocaine from defendant twice. On March 2, 1989, Hampton and Lothar attempted to arrange a sale of cocaine by defendant at which time he would be arrested. The purchase was to have been made at defendant's office in Antioch, Illinois. LMEG officers obtained judicial authorization to record telephone conversations between Lothar and defendant. Lothar was unable to arrange a meeting on March 2, 1989, because defendant did not have any cocaine at that time. Defendant informed Lothar that he would page Lothar when the cocaine arrived. Lothar was then to page Hampton.

Hampton did not get a search warrant on March 2 for the office because he was told by an assistant State's Attorney that there was no need for a search warrant. Hampton presented an affidavit to the trial court seeking authorization for the eavesdropping, which was granted.

At 10 a.m. on March 4, 1989, Lothar paged Hampton. Lothar informed Hampton that defendant had the cocaine and Lothar was to buy 16 ounces for $16,800 at 2 p.m. that afternoon. Hampton then called Agent Mason and told him they "were ready to do the deal" and to contact various law enforcement personnel to meet at the Antioch police department, from which they would proceed to the place of the purchase and arrest.

Sixteen officers from several different agencies were present at the noon meeting at the Antioch police department. In addition, a photojournalist from a local newspaper had also been called to the meeting to participate in the arrest as an observer. The officers discussed the plan that Lothar would wear a "wire" when he went to defendant's office. The officers planned that the buy would take place in the parking lot, but if defendant would not leave the office building, the officers "would break in and arrest Mr. Galdine and get the cocaine." Lothar drew a diagram of the office building and pointed out which office belonged to defendant.

The police in Kenosha County, Wisconsin, had a search warrant for defendant's home in Twin Lakes. The LMEG officers advised the Kenosha County officers that they should wait to execute the search warrant until after defendant was arrested in Antioch.

After the meeting, the officers set up surveillance outside defendant's office. Mason and an evidence technician monitored the electronic eavesdropping device that Lothar was wearing. At 2 p.m., Mason called Lothar and told him to go to defendant's office. Hampton picked up Lothar and drove him there. Lothar entered the building and asked for defendant. Shortly thereafter, defendant arrived and met with Lothar.

Lothar told defendant that his buyer had the money. Defendant said he had the 16 ounces and he had 2 more ounces at his home. Defendant asked if Lothar still wanted 16 ounces, and Lothar stated that he did. Defendant asked if Lothar wanted to see the goods before Lothar went to get the money. Upon seeing the chunk of cocaine, Lothar remarked on its solidity and odor. Lothar told defendant that he had to call his buyer and then called Mason on his car phone and told Mason he had seen the cocaine. Lothar attempted to get defendant to come out of the building to deliver the cocaine, but defendant refused. Lothar exited the building and said:

" 'Well, folks, he's not going for it. Do you like just wanna bust in? It was the office we thought it was. It's adjoined to the reception room, so you are just going to have to come in and, ah, take it.' "

Mason then gave the signal to the other officers to make the arrest.

The evidence is controverted regarding whether the officers entered through the front and back doors of the building or just through the front. One of the officers kicked open a locked inner door. The security guard and defendant were told to lie down. Lothar told Hampton that the cocaine was in the right drawer of defendant's desk. Hampton recovered the cocaine. Defendant was then arrested and taken into custody.

Defendant argued that the police should have obtained a search warrant for the office and, since they made a warrantless entry and search, the evidence must be suppressed. The court took judicial notice of the weekend warrant procedures in Lake County and noted that a warrant could be obtained in two hours. According to defendant, at 10 a.m. on March 4, 1989, the police knew that there was cocaine in defendant's office. Defendant asserted that the police had ample time to get a search warrant before the meeting at the police department at 1 p.m. The State responded that the police could not have gotten a search warrant because they did not have probable cause prior to the time Lothar saw the cocaine in the office. Thus, according to the State, the warrantless entry was proper because of exigent circumstances.

The court found that there would not have been probable cause to issue a warrant until someone knew there were drugs in the building. The warrant could not have issued on March 2 because there were no drugs in the office on March 2, 1989. The court stated, "it wasn't until the informant was there with the wire on him that the police for the first time would have had probable cause to get a warrant." The court denied the motion to suppress on the ground that there were exigent circumstances which justified the warrantless entry.

Defendant filed a motion to reconsider the ruling. The court, in denying the motion to reconsider, explained that the warrant question was moot because a crime was committed in the police officers' presence and, therefore, they had a right to enter the building to make the arrest. The court concluded that the search was incident to the arrest of defendant.

The State nol-prossed count I of the indictment, and defendant proceeded to a stipulated bench trial on the remaining two counts. In addition to the evidence presented at the suppression hearing, the parties stipulated to the following testimony. Agent Hampton would have testified that after defendant was arrested, he asked for his coat. Hampton searched the pockets before giving the coat to defendant and found two ounces of cocaine.

Lothar would have testified that he used to work for defendant and that on January 30, 1989, defendant asked Lothar to sell cocaine. Lothar contacted his stepfather, a police officer, who contacted Hampton. Lothar agreed to work with LMEG until defendant would be arrested. On February 28, 1989, Lothar and defendant agreed that defendant would obtain 16 ounces of cocaine and that Lothar would give defendant $16,800 for it. On March 2, 1989, Lothar had several telephone conversations with defendant which were recorded. The transaction did not take place on March 2 as anticipated. Defendant informed Lothar on March 4, 1989, that the deal was ready to proceed. Lothar informed Hampton and then met with other LMEG agents at the Antioch police department. An evidence technician placed a wire on Lothar.

Lothar met defendant at his place of business. They discussed the transaction of 16 ounces of cocaine for $16,800. Defendant indicated that the cocaine was in the ceiling of the office. Lothar stood on a chair, lifted a ceiling tile and retrieved the 16 ounces of cocaine. Defendant put the cocaine in the desk drawer. Lothar then telephoned Agent Mason to inform him that Lothar had seen the cocaine. Lothar left the building, the arrest signal was given, and Lothar returned to the building after the police officers went in. Lothar showed Hampton where defendant had put the cocaine.

The parties submitted into evidence transcripts of the telephone conversations between defendant and Lothar on March 2, 1989, and of the conversations Lothar had when he wore the wire on March 4, 1989. The first telephone call was made on March 2, 1989, at 3:28 p.m. Lothar called defendant at work. Lothar indicated that he had been waiting for defendant to page him. Defendant told Lothar that their plans would probably not go through for that evening. Defendant was waiting for someone to call him. Defendant said, "[D]on't come up here. As it stands, don't waste your time, don't come up here * * * till I call you." Defendant said he would page Lothar, who responded that if he did not hear from defendant...