People v. Ortiz
| Decision Date | 18 February 2005 |
| Docket Number | No. 2-04-0215.,2-04-0215. |
| Citation | 823 N.E.2d 1171,355 Ill. App.3d 1056,291 Ill.Dec. 585 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Alajandro ORTIZ, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Catharine D. O'Daniel, Chicago, for Alajandro Ortiz.
Joseph E. Birkett, Du Page County State's Attorney, Wheaton, Martin P. Moltz, Deputy Director, Sally A. Swiss, State's Attorneys Appellate Prosecutor, Elgin, for the People.
Defendant, Alajandro Ortiz, appeals the circuit court of Du Page County's denial of his motion to quash arrest and suppress evidence and his subsequent conviction of unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(D) (West 2002)). Concluding that police officers had probable cause to arrest defendant, and that the evidence presented at trial was sufficient to sustain his conviction, we affirm.
In a two-count indictment, defendant was charged with unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(D) (West 2002)) and armed violence (720 ILCS 5/33A-2(a) (West 2002)). Defendant filed a pretrial motion to quash arrest and suppress evidence, alleging that the police lacked probable cause to arrest him.
At the hearing on defendant's motion, defendant called Detective Larry Weiss, supervisor of the narcotics unit of the Du Page County sheriff's department. On December 10, 2002, Detective Weiss was one of the team members conducting surveillance of Detective Tony Davis's undercover purchase of two kilograms of cocaine from a man named Enrique, in the parking lot at 534 Valerie Lane, Addison, Illinois. Detective Weiss explained that a police informant working with Detective Davis orchestrated the drug deal with a man named Sam Perez, of 534 Valerie Lane, apartment number 8. Enrique was expected to arrive in an older model Nissan Maxima, tan or brown in color, with a temporary license plate. The officers set up surveillance at approximately 1 p.m. Detective Weiss parked his undercover vehicle at the corner of Green Meadows Drive and Addison Road. Detective Weiss was in two-way radio contact with all the other officers working the operation except Detective Davis, who was wearing a wire through which Detective Weiss and the other officers could hear him. Detective Weiss received information from other officers that the Nissan was in route, traveling on Lake Street. Next, Detective Weiss observed the Nissan drive past him on Green Meadows in a westerly direction, with a red Ford F150 pickup truck traveling "not even feet" behind the Nissan. The red pickup truck was occupied by "two male Mexicans." The driver was later identified as Juan Moreno and the passenger as defendant. Detective Weiss observed the Nissan and the red pickup truck turn into the parking lot at 534 Valerie Lane and then travel out of his line of sight.
Detective Weiss next saw the red pickup truck when he drove from his location and met the red pickup truck leaving the other end of the parking lot onto Elizabeth Drive. As the red pickup truck attempted to leave the parking lot, Detective Weiss put the front of his undercover vehicle bumper to bumper with the front of the red pickup truck while another officer moved his vehicle behind the red pickup truck to prevent it from backing up. Detective Weiss went to the passenger side of the red pickup truck with his revolver drawn and ordered defendant to put his hands up and to get out of the vehicle. Defendant complied and was handcuffed. Both defendant and the driver of the red pickup truck were placed under arrest, the red pickup truck was searched, and two handguns were recovered from a hidden compartment in the dashboard. Prior to arresting defendant, Detective Weiss did not ask defendant for his driver's license. When asked whether he knew if the occupants of the red pickup truck were connected to the drug transaction, Detective Weiss replied, Detective Weiss also said that he did not see the occupants of the red pickup truck make any gestures toward the occupants of the Nissan and that the driver of the red pickup truck did not commit any traffic violations. Detective Weiss admitted that, at the time the undercover operation commenced, he had no information about defendant's involvement in the sale of the cocaine.
On cross-examination by the State, Detective Weiss testified that he had 15 years' experience in the investigation of narcotics crimes and had been involved in over 1,000 undercover narcotics deals, 100 of which involved the purchase of over half a kilogram of cocaine. Detective Weiss said that surveilling an undercover drug transaction involves looking for countersurveillance, that is, someone else who may be watching the drug deal. Detective Weiss explained that either suppliers of the drugs, distancing themselves from the transaction, or persons serving as security for the drug dealer often perform countersurveillance. Detective Weiss said that countersurveillance is quite common when a drug deal is large like the one orchestrated in this case, which entailed two kilograms of cocaine for $38,000. Detective Weiss first saw the Nissan and the red pickup truck when the vehicles were headed north on Addison Road. The red pickup truck was less than a car length behind the Nissan, and the vehicles were traveling in the inside or fast lane, not the curb lane. Detective Weiss indicated that the vehicles were traveling well below the posted speed limit, such that vehicles in the curb lane of Addison Road were passing them. The Nissan and the red pickup truck stopped where Addison Road intersects with Green Meadows, let traffic clear, and then turned west onto Green Meadows. According to Detective Weiss, once the vehicles made the turn onto Green Meadows, they traveled at almost idle speed to the parking lot. Weiss explained further that if the driver of the red pickup truck had not intended to remain behind the Nissan, he could have passed, as there was no eastbound traffic on Green Meadows at the time. The way the two vehicles were traveling and the fact that each vehicle was occupied by two male Hispanics caused Detective Weiss to conclude that the vehicles were traveling together. The red pickup truck turned into the parking lot, right behind the Nissan, and the vehicles traveled out of Detective Weiss's line of sight. Detective Weiss radioed an account of his observations to the other officers working surveillance of the operation, but not to Detective Davis. Detective Weiss told the other officers that he would take the red pickup truck. The prearranged arrest signal was Detective Davis stating that it was his birthday. After the arrest signal was given and officers began to close on the vehicles, the red pickup truck began moving at a faster rate toward the exit of the parking lot.
On redirect examination by defense counsel, Detective Weiss indicated that he did not see defendant do anything except sit in the passenger seat of the red pickup truck; that he did not see any gestures made between the men in the red pickup truck and the men in the Nissan; and that he received no information from other officers that the red pickup truck stopped at or near the location where the drug transaction was conducted. Detective Weiss said that he made the decision to stop the red pickup truck himself because he was suspicious, he felt that the occupants of the red pickup truck were involved in the drug transaction, and he had a hunch that the red pickup truck was involved in the drug transaction. Detective Weiss did not ask defendant any questions before patting defendant down and placing him under arrest.
The State called Detective Tony Davis of the Du Page County sheriff's department, who testified that a police informant told him that the informant could buy cocaine from Perez, who lived at 534 Valerie Lane and who got his cocaine from Enrique Fuentes.1 The informant told Detective Davis that, on November 29, 2002, the informant and Perez went to 2334 North Tripp in Chicago, the home of Fuentes. At that time and place, the informant saw a kilogram of cocaine. According to the informant, an unknown man, whom he later identified as the driver of the red pickup truck, was present at Fuentes's house on November 29, 2002. On December 4, 2002, Detective Davis and the informant went to 534 Valerie and met with Perez and Fuentes. Although Detective Davis learned from officers performing surveillance of 2334 North Tripp that the Nissan Maxima left that address and headed toward Addison on December 4, 2002, no drug transaction occurred that day.
On December 10, 2002, Detective Davis and the informant were in an undercover vehicle in the parking lot at 534 Valerie, with the purpose of purchasing two kilograms of cocaine from Fuentes. The informant told Detective Davis that Fuentes carries a gun "every now and then." Detective Davis was not able to hear the radio traffic of the other officers performing surveillance of the operation. However, Detective Davis was wearing a wire and the other officers could hear him. While waiting in the parking lot, Detective Davis had a telephone conversation with Fuentes, who told him that he was in the vicinity, driving a Nissan Maxima. Detective Davis gave that information to the other officers. At some point, Davis observed a 1993 goldish-brown Nissan Maxima enter the parking lot, with a red pickup truck directly behind it. The Nissan pulled past Detective Davis's undercover vehicle, and he and the Nissan's occupants acknowledged one another as the Nissan passed. Meanwhile, the pickup truck moved at a slow pace through the parking lot. As Detective Davis and the informant exited the undercover vehicle, Detective Davis saw the occupants of the red pickup truck turn their heads and look behind them toward...
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