People v. Simmons

• Decision Date: 20 March 1991
• Docket Number: No. 2-89-0491,2-89-0491
• Parties: , 155 Ill.Dec. 410 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Darrell SIMMONS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 591

569 N.E.2d 591

210 Ill.App.3d 692, 155 Ill.Dec. 410

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Darrell SIMMONS, Defendant-Appellee.

No. 2-89-0491.

Appellate Court of Illinois,

Second District.

March 20, 1991.

Fred L. Foreman, Lake County State's Atty., Waukegan, William L. Browers, Deputy Director, Cynthia N. Schneider, State's Attys. Appellate Prosecutor, Elgin, for the People.

G. Joseph Weller, Deputy Defender, Kim M. DeWitt, Office of the State Appellate Defender, Elgin, for Darrell Simmons.

Justice DUNN delivered the opinion of the court:

The State appeals from an order of the circuit court suppressing the evidence against defendant, Darrell Simmons. Defendant was charged with possession of a substance containing less than 15 grams of cocaine (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1402(b)). He filed a motion to suppress the evidence, which was denied. After a stipulated bench trial, the court found defendant guilty of the offense. Defendant filed a motion for a new trial and to reconsider the motion to suppress. The court granted those motions, and the State filed this appeal pursuant to Supreme Court Rule 604(a)(1) (134 Ill.2d R. 604(a)(1)). The State raises one issue on appeal: whether a police officer, executing a search warrant authorizing the search of a building and of an unidentified person, could search defendant, who was present on the scene and who had some of the characteristics of the person described in the warrant.

In the motion to suppress, defendant alleged that the search of his person was unlawful because defendant had no connection to the residence searched; he was not named in the search warrant; and he was not observed in the commission of a crime nor did the police have probable cause to believe that he had committed a crime. The search warrant authorized the search of "an unidentified male black, approximately 5 feet 8 inches, 180 lbs with brown hair and brown eyes, medium complexion and approximately 22 years of age" and of the residence located at 520 Eighth Street, in Waukegan. The warrant authorized the seizure of cocaine, drug paraphernalia associated with the use and sale of cocaine, and evidence of occupancy or ownership of the premises. In the complaint for the search warrant, the affiant, Officer Michael Bettasso, stated that an informant had made two controlled purchases of cocaine from the subject of the warrant, at 520 Eighth Street. The informant told Bettasso about the purchases and also told Bettasso that on one occasion the informant observed a room to the right of the staircase on the landing. The subject told the informant that this room was the "Smoker room," where those who purchased cocaine could ingest it by "Freebasing" or inhaling it. The informant observed several people inside the "Smoker room" inhaling what he believed was cocaine.

At the hearing, Officer John Angelos, of the Waukegan police department, testified that on March 14, 1989, at 5:30 a.m. he went to 520 Eighth Street in Waukegan to execute a search warrant. Angelos was accompanied by Lieutenant Burleson and Officers Henriquez, Bettasso, and Bartlett. Angelos and his partner entered the bedroom off of the stairway. There were three black males in the room. Two were seated on the bed, and the other person was sitting on a chair next to the closet. Defendant was one of the men. The officers told the men to put their hands on their heads and to lie facedown on the floor. All three complied. Angelos then had defendant stand up. Angelos patted him down and then went through defendant's pockets, where he found a packet of cocaine. Angelos further testified that when the officers first entered the room, the men did not make any move to destroy or conceal evidence, nor did they make any threatening gestures. The officers did not question defendant before they searched him. Angelos admitted that he did not know whom he was supposed to search. Angelos stated that, in addition to the packet of cocaine that he found in defendant's pocket, the officers recovered a handgun from the bedroom and a large quantity of drugs from the basement.

On cross-examination, Angelos stated that defendant fit the description of the unidentified person described in the warrant. However, when Angelos entered the room, he did not know which one of the three men was the person described in the warrant. Angelos further stated that he found drug paraphernalia ("copper scouring powder, scrubbers, burning materials to heat up these items, baking soda for cutting purposes, and * * * used * * * pony packs") on the floor, the desk and the television in the bedroom. Although the loaded handgun found in the bedroom was "not in direct view," it was within five to six feet of defendant. Angelos had each of the three men get up, one by one, and patted them down for weapons. Angelos admitted that he searched defendant's pocket because he believed that it contained contraband since defendant was in the "Smoker room." During the search, Angelos did not "pay any attention to" defendant's height and later estimated that defendant's height was 5 feet 11 inches.

Defendant testified that on March 15, 1989, he was between 6 feet and 6 feet 1 inch tall and he was living in Bellwood, Illinois. Defendant was 23 years old. Defendant admitted that he weighed 175 pounds and had a "[m]edium complexion."

After hearing the arguments of counsel, the court noted that people frequented the residence at 520 Eighth Street to buy drugs and that the room where defendant was found was used to consume drugs. It was not clear to the court whether the gun was concealed. The court stated that it appeared that only one officer was in the room and there was a gun in the room; thus, the search of the men was justified as a protective search. The court also noted that there was a two- to four-inch discrepancy in the height, but that all the other characteristics of the person described in the warrant fit defendant: "180 pounds, brown hair[,] brown eyes, medium complexion, approximately twenty-two years of age." Consequently, the court denied the motion.

Following the stipulated bench trial, wherein the court found defendant guilty of the offense, defendant filed a motion for a new trial or to reconsider the ruling on the motion to suppress. At the hearing on that motion, the court admitted that it made some unwarranted assumptions on which it based its prior ruling. The court emphasized that there was no evidence that the gun was in plain view, nor was there evidence of any pat downs that may have resulted in finding a gun, because the officer reached into defendant's pocket, rather than just patting him down to determine whether he had a concealed weapon. There was also no evidence of the physical characteristics of the two other men in the room. The court also erroneously assumed that Angelos was the only police officer in the room. The court indicated that it based its prior ruling on the probable cause to arrest defendant for unlawful use of weapons. The court rejected the State's argument that the search of defendant was lawful as pursuant to a search warrant, stating, "[i]f there were some evidence the other two did not fit that description," the State would be correct. Defense counsel argued that the State could not rely on the warrant because it was overly broad. The court then granted the original motion to suppress.

On appeal, the State contends that the search of defendant was valid for two reasons: (1) defendant fit the description in the warrant of the person to be searched; and (2) the officers had probable cause to believe that defendant was concealing contraband.

In this appeal, the State must overcome the presumption in favor of the suppression order because a trial court's decision to suppress evidence will not be overturned on review unless that decision is clearly erroneous. (People v. Galvin (1989), 127 Ill.2d 153, 162, 129 Ill.Dec. 72, 535 N.E.2d 837.) Although the defendant has the burden of proof to make a prima facie showing that the police obtained the evidence illegally, once he satisfies that burden, the burden of proof then shifts to the State to show that the search was legal. People v. Kolody (1990), 200 Ill.App.3d 130, 134, 146 Ill.Dec. 626, 558 N.E.2d 589.

The State argues that the search of defendant was proper because he substantially fit the warrant description of the person to be searched. The fourth amendment to the United States Constitution "prohibits the issuance of any warrant except one 'particularly describing the place to be searched and the persons or things to be seized.' The manifest purpose of this particularity requirement was to prevent general searches." (Maryland v. Garrison (1987), 480 U.S. 79, 84, 107 S.Ct. 1013, 1016, 94 L.Ed.2d 72, 80.) The Code of Criminal Procedure of 1963 also requires that the person to be searched must be described with particularity. (See Ill.Rev.Stat.1989, ch. 38, pars. 108-3, 108-7.) The State, without citation to authority, asserts that the warrant was not vague or uncertain because it described the physical characteristics of the intended subject of the warrant.

The warrant authorized the search of an "unidentified" person. This is a "John Doe" type warrant. Generally, "John Doe" warrants have been held illegal, unless the warrant somehow names the person or describes him sufficiently. (West v. Cabell (1894), 153 U.S. 78, 85, 14 S.Ct. 752, 753, 38 L.Ed. 643, 644-45; see also United States v. Doe (3d Cir.1983), 703 F.2d 745, 747.) To determine the warrant's validity, courts must decide how much information must be supplied by it. Doe, 703 F.2d at 748. A search warrant that does not have any name or with only a first name may be valid if, on its face, the warrant includes other facts such as a physical description and a location where the person may be found. (2 W. LaFave, Search & Seizure § 4.5(e), at 228-29 (2d ed. 1987).) A search warrant...