People v. Luckett

• Decision Date: 30 June 1995
• Docket Number: No. 1-94-0502,1-94-0502
• Citation: 652 N.E.2d 1342,273 Ill.App.3d 1023
• Parties: , 210 Ill.Dec. 366 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Porter LUCKETT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1342

652 N.E.2d 1342

273 Ill.App.3d 1023, 210 Ill.Dec. 366

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Porter LUCKETT, Defendant-Appellant.

No. 1-94-0502.

Appellate Court of Illinois First District, Fifth Division.

June 30, 1995.

[273 Ill.App.3d 1025] [210 Ill.Dec. 368] Dennis A. Giovannini & Herbert L. Goldberg, Chicago, for appellant.

Renee Goldfarb, Barbara L. Jones, Kendra A. Thraman, State's Atty., Chicago, for appellee.

Justice THOMAS J. O'BRIEN delivered the opinion of the court:

A grand jury indicted defendant, Porter Luckett, for possession of a controlled substance with the intent to deliver after police discovered a large amount of cocaine and other drug paraphernalia at defendant's apartment. At his subsequent trial, a jury found defendant guilty as charged, and the circuit court sentenced him to 17 years in prison. The court further fined defendant $160,000.00. We affirm.

BACKGROUND

The following facts were taken from both the hearing on defendant's motion to quash the search warrant and suppress evidence and the ensuing trial. Chicago police officer Regina Brown testified that on November 26, 1990, she met with a confidential informant who told her drugs were being sold from the first floor apartment at 3604 West Monroe Street in Bellwood, Illinois. The informant had been in the apartment earlier that day and had been allowed to sample some of the cocaine that was being sold. Several people had been present in the apartment, including a man who was armed with a nine millimeter handgun. The informant named defendant as one of the people in the apartment.

Around 10 o'clock that night, Brown and her partner went to 3604 West Monroe and inspected the building from their car. They saw a front and a rear door and concluded that the building contained an apartment on the first floor and one on the second floor. Brown admitted seeing a side door, but could not see it "that well" due to the darkness.

On the following morning, Brown called both Commonwealth Edison and the Northern Illinois Gas Company and was told that the utilities of the first floor apartment were billed to Irene and Porter McKinney. ¹ Based on these facts, Brown obtained a search warrant for "Porter G. Luckett, aka: Porter aka: Porter McKinney" and the premises at "3604 W. Monroe St., 1st Floor Apartment." (Emphasis added.)

On the evening of November 27, 1990, Brown and seven of her fellow officers met to plan their strategy for executing the search warrant. Officers from both the Chicago Police Department and the Bellwood Police Department participated in the search. When Brown arrived at the premises, she entered the building through the front door. At that time, she believed there was only one apartment on the first floor. Once in that apartment, Brown noticed that it was vacant. She then heard someone say, "We are in the apartment." She walked to the back of the apartment, through its rear door which exited into a foyer. She then proceeded through another door. That door was open when Brown first saw it. Brown realized the floor contained more than one apartment as she walked from the front apartment into the foyer and then into the rear apartment.

Chicago police officer Carlo Virgilio also took part in the search of 3604 West Monroe. Virgilio and his partner entered the first floor of the building through its side door, into a "small foyer". In that foyer, Virgilio saw two doors facing each other and realized that two separate apartments were on the first floor. Virgilio forcibly entered through the door on his left into a vacant apartment. As he entered, he saw Brown enter the same apartment from its front entrance. Virgilio returned to the foyer, and he and his partner entered the rear apartment, the door of which Virgilio's partner had kicked open. Virgilio and his partner were the first of the team to enter the rear apartment. After the entry, police found cocaine, drug-selling paraphernalia, and a handgun in the rear apartment.

At the hearing on the motion to suppress, the circuit court judge asked Brown several questions concerning a discrepancy between her testimony and the search warrant. During her testimony, Brown stated that she had spoken with the informant on November 26, 1990 and not on November 27, 1990 as the warrant indicated. Brown told the court that the date on the warrant was incorrect and that her testimony reflected the actual date on which the events had occurred.

The circuit court denied defendant's motion to quash the warrant and suppress the evidence. Specifically, the court ruled the officers had acted reasonably once they realized two apartments were on the first floor, emphasizing that (1) the contraband could have been moved while police obtained a more specific warrant for the search of the rear apartment, and that (2) weapons were purportedly in the apartment. The contraband found by police provided the basis for defendant's conviction.

I

Defendant contends the circuit court erred in denying his motion to quash the search warrant and to suppress the evidence. He alleges the original warrant and its accompanying complaint bear signs of alteration. Defendant's characterization of the document's appearance is accurate: in each instance in which the premises to be searched is described, white correction fluid has been applied to mark out the original words. The word "Floor" is typed on the dried correction fluid, which covers the originally typed words "1st" and "Apartment". A rather large space exists between the typed-over word "Floor" and the original word "Apartment". However, the words "flr. (rear)" can be discerned under the correction fluid in that space.

Defendant suggests that the discernible words establish that officer Brown knew prior to the search that two apartments were on the first floor. He maintains Brown lied about this fact at the suppression hearing. In response, the State contends defendant has waived this particular theory because he did not raise it in the circuit court.

Although we agree with defendant's characterization of the document's appearance, we can only speculate as to why the alterations were made. The alterations could have been done to correct a typographical error or they could have been done to legitimize the search; each is plausible. The record before this court contains no facts upon which we may pass judgment as to this issue. In fact, during oral argument, defense counsel informed this court that the matter was once again before the circuit court in the form of a post-conviction petition. We note that the circuit court's determination on that petition is now on appeal. We, therefore, leave the matter to be decided in that forum.

Turning to the merits of defendant's contention, we begin our analysis by noting that a circuit court's ruling on a motion to suppress will not be overturned unless manifestly erroneous. (People v. Galvin (1989), 127 Ill.2d 153, 129 Ill.Dec. 72, 535 N.E.2d 837.) The circuit court's determinations regarding witness credibility, weight accorded to testimony, and the inferences to be drawn from that testimony are given deference upon review. (People v. Galvin, 127 Ill.2d at 163, 129 Ill.Dec. 72, 535 N.E.2d 837.) If the evidence merely conflicts, a court of review may not substitute its judgment for that of the circuit court. People v. Akis (1976), 63 Ill.2d 296, 299, 347 N.E.2d 733.

Defendant mounts a two-pronged challenge to the particularity of the warrant in this case. He first maintains the warrant was facially vague because it described the premises merely as " * * * 3604 West Monroe Street, 1st Floor Apartment," when, in actuality, the building at that address contained two first floor apartments.

The fourth amendment requires that no warrant shall issue except those "particularly describing the place to be searched". (U.S. Const., amend. IV.) The purpose of this limitation is twofold. Primarily, it is to minimize the risk that those executing the warrant will mistakenly search a place other than the place authorized by the magistrate. Also, the lack of a more specific description may indicate that probable cause is wanting, that is, officials have made an insufficient showing to the magistrate either as to the identity of the items sought or of the premises where the items are located.

Generally, the fourth amendment's particularity requirement is not met where only a general description of a multiple-occupancy building is provided. (See e.g., United States v. Busk (3d Cir.1982), 693 F.2d 28; United States v. Higgins (7th Cir.1970), 428 F.2d 232.) That is so because the probable cause requirement would be rendered virtually meaningless if police could legally search several living units upon a mere showing that one of the units, not specifically identified, contained the contraband sought. United States v. Higgins, 428 F.2d at 235.

Defendant argues that Maryland v. Garrison (1987), 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 provides the guidelines for determining the propriety of both the warrant and the search in this case. In Maryland v. Garrison, Baltimore police obtained a warrant to search the person of Lawrence McWebb and "the premises known as 2036 Park Ave., third floor apartment". (Maryland v. Garrison, 480 U.S. at 80, 107 S.Ct. at 1014, 94 L.Ed.2d at 78.) When the police applied for the warrant, they believed that there was only one apartment on the premises described in the warrant. In fact, the third floor was divided into two apartments, one occupied by McWebb and one by Garrison--an individual and a premises not originally the subject of the intended search. While executing the warrant, the police fortuitously encountered McWebb in front of the building and used his key to gain entrance to the first floor as well as to a locked door to the third floor. As the police entered the vestibule on the third floor, they encountered Garrison standing in the hallway. Both...