People v. Montes

Decision Date24 June 2020
Docket NumberNo. 2-18-0565,2-18-0565
Citation179 N.E.3d 278,2020 IL App (2d) 180565,449 Ill.Dec. 359
Parties The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gilberto MONTES, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

James E. Chadd, Thomas A. Lilien, and James K. Leven, of State Appellate Defender's Office, of Elgin, for appellant.

Joseph H. McMahon, State's Attorney, of St. Charles (Patrick Delfino, Edward R. Psenicka, and Victoria E. Jozef, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE BRIDGES delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant, Gilberto Montes, was convicted of unlawful possession of 900 grams or more of a substance containing cocaine, with intent to deliver ( 720 ILCS 570/401(a)(2)(D) (West 2014)). On appeal, he argues that (1) the trial court erred in denying his motion to suppress evidence, because his arrest was not supported by probable cause, (2) his unconstitutional arrest vitiated his consent to search his home and requires suppression of the evidence found therein, under the fruit of the poisonous tree doctrine, and (3) if his defense counsel failed to preserve the issue of probable cause to arrest, counsel provided ineffective assistance. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On January 27, 2016, defendant was charged in a two-count indictment. Count I charged him with unlawful possession of a controlled substance with intent to deliver ( 720 ILCS 570/401(a)(2)(D) (West 2014)), a class X felony. It alleged that on June 12, 2015, defendant knowingly and unlawfully possessed with intent to deliver 900 grams or more of a substance containing cocaine. Count II charged defendant with unlawful possession of a controlled substance ( 720 ILCS 570/402(a)(2)(D) (West 2014)), a class 1 felony, based on the same allegations, minus intent to deliver.

¶ 4 A. Motion to Suppress

¶ 5 On March 30, 2017, defendant filed a motion to quash arrest and suppress evidence.1 He argued in the motion that "the arresting officers had no warrant for [his] arrest and were not authorized under any provision of the law to affect such an arrest." He further argued that the police improperly searched his residence without a warrant or permission. A hearing on the motion took place the same day.

¶ 6 We summarize defense counsel's opening argument on the motion to suppress. On the date in question, defendant was stopped by Department of Homeland Security (Homeland Security) investigators though he was not committing any crime or engaging in any unlawful activity at the time. After the officers placed defendant in custody, they learned that he was in the country illegally. Counsel stated that this was "really not one of the issues in the case at this point, but [he] guess[ed] it [was] a sub-issue." The officers then searched defendant's vehicle and house, without a warrant or consent, violating his fourth amendment rights.

¶ 7 Defendant provided the following testimony. On June 12, 2015, he lived at 1075 Lisa Boulevard in Aurora. At about 11 a.m., he drove in his pickup truck with his dog to a Walgreens store and bought some items. When he exited the store, a man stopped him and told him that he was from Homeland Security. He asked if defendant was "Flores," and defendant said no. The officer asked another question, and defendant said that he could not answer because he did not speak English. An officer who spoke Spanish joined them and three or four unmarked police vehicles arrived. All of the officers wore civilian clothing. They asked defendant for identification, and, when he showed them his identification, they said that it was "garbage." Defendant wanted to go to his truck to let his dog out, but the officers did not allow him to leave. The officers said that they had a warrant for his arrest for selling marijuana and that he was under arrest. They searched his truck without asking for permission but did not find anything.

¶ 8 Defendant's identification listed his address as 609 Lake Street in Aurora, which was his previous address. An officer said that defendant did not live there anymore and that they were going to defendant's current residence, at 1075 Lisa Boulevard. Defendant asked if they had a "permit or permission to go in," and the officer said, " ‘No. It's okay.’ " An officer drove defendant's truck to his house and parked it there. Defendant was handcuffed and traveled in another car. There were about 8 to 10 police cars already at the house. The police were going to kick in the door, but then an officer asked if a key he was holding was defendant's house key. Defendant said yes, but he did not give the police permission to go in. The police never showed defendant a warrant, and they did not ask him to sign any documents.

¶ 9 Sergeant Detective Montague Hall testified as follows. He was a task force officer in the narcotics group of Homeland Security. He was also a sergeant with the Waukegan Police Department. He spoke Spanish in addition to English, and he used Spanish in about 85% of his work encounters.

¶ 10 On June 12, 2015, Hall was investigating defendant in Hall's capacity as a task force officer with Homeland Security. "Information was given" to them that defendant was dealing narcotics and laundering money back to a Mexican cartel. The informant provided a name and phone number, which led the officers to defendant. Hall admitted that the investigation synopsis did not identify the subscriber of the phone number. The officers looked up defendant in the "system" and found out that he had previously been under investigation for cannabis smuggling and money laundering. Eric Powell, an immigration officer assigned to the narcotics group, determined that defendant was in the United States illegally.

¶ 11 Hall and Officer James Lindley conducted surveillance on defendant in Aurora. They were wearing plain clothes and in an unmarked police car, but Hall wore a bulletproof vest that said "Police." The officers saw defendant make several trips to a Bank of America branch and then saw him go into a Walgreens. When defendant exited the Walgreens, Hall and Lindley approached defendant on foot. They were off to the side of the parking lot, and they were not next to defendant's vehicle. Hall spoke to defendant in Spanish. He identified himself and asked defendant if he was Gilberto Montes. Defendant said yes, and Hall asked him for identification. Neither officer told defendant to stop or asked if his name was Flores. However, in his testimony, Hall admitted that he was conducting an investigatory stop and that defendant was not free to leave. Defendant's identification listed his address as 609 South Lake Street. Hall told defendant that he was under investigation for being in the country illegally. Powell then arrived, and he verified that defendant was in the country illegally. Neither officer said that defendant's identification was "garbage" or that he did not live at 609 South Lake Street.

¶ 12 Hall then took defendant into custody and advised him of his rights under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Hall placed defendant in handcuffs and told him that he was under investigation for cannabis smuggling and money laundering. Hall also told defendant that they believed that he was selling cannabis from his house. Defendant said that he lived at 1075 Lisa Boulevard. He said that he had no cannabis in the house and that the police could check the house if they wanted to. To clarify, Hall asked defendant if the police could go to his house and check, and defendant replied in the affirmative. Hall therefore believed that defendant gave verbal consent to search the residence. They placed defendant in the backseat of Powell's car and drove there. The officers asked if defendant wanted to leave his truck at Walgreens, and he requested that they bring it back to the residence because his dog was inside. The officers did not search the vehicle at the time, but they later searched it and found marijuana.

¶ 13 At the house, the three officers and defendant walked up to the front door. Defendant showed Hall which key opened the door, and they went inside. The officers found money and narcotics ledgers in a hidden compartment in the bathroom and two kilograms of cocaine hidden underneath a chair.

¶ 14 During the hearing, Hall identified a consent-to-search form used by Homeland Security and testified that he or another agent might have had such a form with them during the encounter with defendant. He did not use a form with defendant, because defendant gave verbal consent to search the house. The form used specific language regarding consent and informed the signatory that he had a right to refuse. When using the form, Hall would write his own name where it stated "ICE special agent," list the property, and require the individual's signature. The acknowledgement in the form stated "I hereby voluntarily and intentionally consent to allow ICE to search my property" and noted that the consent was freely given.

¶ 15 We summarize defense counsel's closing argument on the motion to suppress. The State did not meet its burden. A form documenting voluntary consent is specific and unique, and the officers' failure to use one showed that the search was not done in the proper manner. The officers obtained defendant's statement that they could "check" the house, but that statement was ambiguous. Nothing in the record indicated that defendant understood his rights, including that he had the right to refuse to consent. The failure to document his consent should indicate to the court that defendant was not consenting freely and voluntarily. Counsel concluded by stating, "at this point, we're only talking about the search of the home, the Court should suppress the evidence that was encountered inside the home."

¶ 16 The trial court stated:

"The court finds that the officers had done an investigation prior to this
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