Opinion
No. 1-15-2308
04-25-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYIESHA CURTIS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 15 CR 785 Honorable Vincent Michael Gaughan, Judge, presiding. PRESIDING JUSTICE COBBS delivered the judgment of the court.
Justices Fitzgerald Smith and Howse concurred in the judgment.
ORDER
¶ 1 Held: The trial court's denial of defendant's pretrial motion to quash arrest and suppress evidence affirmed where the evidence was legally obtained. ¶ 2 Following a bench trial, defendant Tyiesha Curtis was found guilty of possession of a controlled substance (720 ILCS 570/401(c)(2) (West 2014)), and sentenced as a first-time offender to 15 months' probation (720 ILCS 570/410(a) (West 2014)). On appeal, defendant contends that the trial court erred by denying her pretrial motion to quash arrest and suppress 2 evidence because the police conducted an unlawful search of her apartment. Because she contends that, without the suppressed evidence, the State could not prove her guilty beyond a reasonable doubt of possession, defendant asks that we reverse the trial court's disposition outright. For the following reasons, we affirm. ¶ 3 Defendant was charged with possession of a controlled substance with intent to deliver, arising from an incident which occurred on December 12, 2014, with codefendant Ted Campbell. In response to the charge, defendant filed a motion to quash arrest and suppress evidence in which she alleged that her arrest and the recovery of narcotics were made without the authority of a valid search or arrest warrant and without probable cause. A hearing on defendant's motion to quash was held simultaneously with her joint bench trial with Campbell, who is not a party to this appeal. ¶ 4 At the motion hearing and trial, Chicago police officer Matthew Bouch testified that, on December 12, 2014, around 7:38 p.m., he was working with Chicago police officers Thomas Hanrahan, Nicholaus Lesch, and Omar Gomez. The officers were conducting narcotics surveillance inside a building on West Wilcox Street. The area surrounding the building was known as a high narcotics area, and the building itself was an abandoned multiunit structure. Bouch knew the building was abandoned because he had made several arrests there before, and he had a general knowledge of the area. The building was dilapidated, had broken windows, and was generally unkempt. The back doors to the building were barricaded with large dumpsters and the stairwell was blocked by trash bags. Inside, some hallways were lit, while others were not, the basement had freestanding water, and several units were missing doors. The building smelled from various dead animals scattered throughout, such as rats and cats. 3 ¶ 5 Once inside the building, Bouch went to an apartment on the fourth floor to set up surveillance with Hanrahan. Lesch was in a different apartment across the hall, and Gomez remained in the officers' vehicle. Bouch subsequently observed codefendant Campbell in the hallway. Campbell exited a vacant apartment on the fourth floor. Bouch knew the apartment was vacant because it was missing a door and there were no lights on inside the apartment. Campbell was holding a blue steel semiautomatic handgun in his right hand. Bouch had no doubt it was a handgun based on his police training and prior military experience. ¶ 6 Upon seeing the gun, Bouch broke surveillance, announced his office, and approached Campbell. Campbell looked in Bouch's direction, placed the gun into his waistband, and fled down the hallway into another apartment, later identified as apartment 403. Bouch chased Campbell and followed him inside apartment 403. Once inside, Bouch and Hanrahan struggled with Campbell, and eventually arrested him. Hanrahan recovered the gun from Campbell's waistband, and they discovered it was loaded with seven live rounds. ¶ 7 Lesch had also entered apartment 403 and cleared it while Bouch and Hanrahan arrested Campbell. The apartment was messy and covered in trash. There was a "very bad smell" from a dead cat in the apartment. Defendant was found in a bedroom in the apartment, which had working lights. However, other rooms in the apartment did not have lights. ¶ 8 On cross-examination, Bouch testified that he did not believe defendant and Campbell lived in apartment 403, although defendant was found inside the unit. There was a mattress inside the apartment, but it did not have a sheet on it. Bouch later went inside the bedroom where defendant was found, and there was trash everywhere. He did not recall seeing pictures on the 4 wall. To his recollection, neither defendant nor Campbell had keys to the apartment. He did not search for keys to the apartment. ¶ 9 Bouch acknowledged that he did not write in any police reports that the building was abandoned. He further acknowledged that he did not describe the building's decrepit appearance and smells in the police reports. He conducted surveillance on the fourth floor because the hallway was lit, and he knew narcotics sales occurred throughout the building. Because that particular hallway was lit, Bouch knew that he would be able to see what occurred. He acknowledged that no one invited him into the building and he did not have a warrant to enter the building. He did not see narcotic activity take place on the fourth floor. He had been on surveillance for approximately five minutes when he observed Campbell. ¶ 10 Bouch and his partners were in plain clothes. He acknowledged that he did not include in his police report that he announced his office prior to making contact with Campbell. Campbell did not shut the door behind him when he fled into apartment 403. To his knowledge, Bouch had never seen Campbell before. He did not know at that time whether Campbell had a valid firearm owner's identification (FOID) card. ¶ 11 Bouch acknowledged that he did not have a warrant to enter apartment 403 and no one invited him in. When asked if, at that time, he was not "sure that there was a crime being committed," Bouch testified "the fact that it was an abandoned building and [Campbell] had a handgun in his hand, that led me to believe the crime was being committed there." Bouch did not know who owned the apartment or building. He had not verified the owner prior to going to the building to conduct surveillance. He acknowledged that mere possession of a firearm is not a crime, depending on a person's location, and that someone can legally possess a weapon in his 5 own home, if he has the proper documentation. He knew the apartment was not Campbell's property because the building was abandoned. ¶ 12 Bouch did not ask Campbell any questions prior to entering the apartment or recovering the handgun. After placing Campbell under arrest, Bouch proceeded through the rest of the apartment because he knew Lesch had encountered another individual when he went to clear the other rooms. He could hear Lesch talking, but could not hear what he was saying. Bouch went into another room and observed defendant. She had been placed into custody, and Lesch had recovered a large quantity of narcotics and money. Bouch observed in Lesch's hand "large stacks of Unites States currency and several ziplock baggies of suspect crack cocaine." No one else was in the room other than defendant and Lesch. ¶ 13 Bouch did not check to see if the locks on the doors of apartment 403 functioned or whether the apartment had running water. He further did not look for proof of residency. ¶ 14 On redirect, Bouch testified that he processed defendant and Campbell after they were arrested. During processing, neither defendant nor Campbell gave the West Wilcox building as their address; instead, they both provided as their address a residence on West Gladys Avenue. While in the hallway of the building, Bouch did not verify whether Campbell had a valid FOID card because Campbell had fled after he announced his office. Campbell did not present his credentials inside the apartment. ¶ 15 Chicago police officer Nicholaus Lesch testified that, on December 12, 2014, at around 7:38 p.m., he was conducting narcotics surveillance on the fourth floor of the building on West Wilcox with Officers Hanrahan, Bouch, and Gomez. He observed Campbell exiting an abandoned apartment holding a black semiautomatic pistol. Lesch recognized it was a handgun 6 based on his firearm training with both the military and the Chicago Police Department. Lesch, Hanrahan, and Bouch exited their points of surveillance and announced their office. Campbell looked in their direction, placed the gun in his waistband, and fled into apartment 403. Lesch and his fellow officers followed Campbell into apartment 403. While Bouch and Hanrahan went after Campbell, Lesch cleared the rest of the apartment. ¶ 16 Lesch went into a bedroom and encountered defendant lying on top of two mattresses with six plastic bags of suspected crack cocaine and "large piles of money." The room contained two mattresses on top of milk crates, a broken dresser, and was covered in trash. When Lesch entered the room, he announced his office and defendant attempted to conceal the bags of suspected narcotics and money between the mattresses. Lesch detained defendant and recovered $1200 in cash and six knotted plastic bags, which held 85 ziplock bags, each containing suspected crack cocaine. ¶ 17 On cross-examination, Lesch acknowledged that the case report did not mention that the officers announced their office to Campbell upon seeing him in the hallway with a gun. After entering the apartment, he observed Hanrahan and Bouch engaged in a struggle with Campbell so he cleared the rest of the apartment. Lesch looked through the rest of the apartment because of the surrounding circumstances: they were in a known narcotics sales location; the building was known to have robberies and shootings; based on his experience, if all three officers were dealing with one individual in a "known violent location" with firearms, this could lead to "multiple bad situations such as ambush, counter-ambush. Anything." Lesch had been on the fourth floor of that building before, but had not seen Campbell. There were no legal tenants or other people "living" in the building. Any people in the building were "squatters, sleeping overnight, [or] 7 sleeping off their high." Based on his observations, Lesch did not believe that defendant and Campbell were squatting in apartment 403. The lights were turned on in the apartment but the bathroom was completely flooded, he did not see women's clothing in the bedroom, and there was "a ton of trash." Lesch acknowledged that he did not have a warrant to look through the apartment and did not hear noises that made him question his safety. With his gun drawn, he walked approximately five feet from the living room where the other officers were detaining Campbell to the bedroom where defendant was located. He could not recall whether the bedroom had a door, but if it did, it was open. ¶ 18 The parties stipulated that Officer Lesch gave the six plastic bags holding 85 ziplock bags of suspected cocaine to Officer Gomez, who inventoried them pursuant to Chicago Police Department inventory procedures. The parties further stipulated that, if called, forensic analyst Debra Bracey of the Illinois State Police crime lab would testify that she tested 56 of the items and 5.1 grams out of 7.7 grams tested positive for cocaine. ¶ 19 Defendant testified that Campbell was her boyfriend and they had three children together. On December 12, 2014, she was living at the West Wilcox building in apartment 405. She had "been staying there for *** like a year-and-a-half." Prior to that date, she had a written lease but it had expired. She paid $800 a month to her landlord and lived in the apartment with Campbell and their children. Both defendant and Campbell had keys to the apartment. ¶ 20 On the day in question, defendant's children were not in the apartment. She was lying down in her room with Campbell, looking on her computer. The door to the apartment was locked. The electricity and heat were working in her apartment and she had her personal 8 belongings there. She denied that there was a dead cat in the apartment. She denied giving the police the West Gladys address during processing. That address was her mother's old residence, and the police "went off the address that was in the computer." ¶ 21 Campbell left the bedroom to answer a knock on their front door. Defendant heard him say, "No, no, you can't come in. No." Officer Lesch then approached her room and said to her, "Is it anything up in here that I should know about? We here for him not you." Defendant responded, "No, sir, it's not anything in this apartment." Lesch then brought her into the living room. ¶ 22 Defendant denied that she rolled over onto 85 bags of crack cocaine and $1200 in cash on her bed. She acknowledged that the drugs were under her bed and the money was on the television stand. Defendant did not invite the police into her apartment and they did not show her a warrant. ¶ 23 On cross-examination, defendant denied that her building was dilapidated and littered with trash and dead animals. Defendant did not know of drug activity in the building, and she denied using or selling the narcotics recovered from her apartment. ¶ 24 Following arguments, the court denied defendant's motion to quash arrest and suppress evidence. The court found that the State failed to prove that the building was abandoned, but the police had a right to be in the common areas of the building. It further found that, upon seeing Campbell with a gun, police had a right to conduct an investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968). Further, the court found that, when Campbell ran, the officers had a right to pursue him and, for safety purposes, clear the apartment once they were inside. The court noted the testimony that the building was known for violence, narcotics sales, and shootings, and 9 Campbell presented a struggle when the officers attempted to arrest him. Thus, the court found that exigent circumstances warranted Lesch clearing the apartment to ensure officer safety, and he therefore had a right to be in the apartment when he observed defendant. ¶ 25 The court subsequently found defendant guilty of possession of a controlled substance. Defendant filed a posttrial motion for new trial, arguing that the police unlawfully entered and searched her apartment, which led to the unlawful recovery of narcotics and her arrest. The court denied her motion and sentenced defendant to 15 months' first offender probation under section 410 of the Illinois Controlled Substances Act of the Criminal Code of 2012 (720 ILCS 570/410(a) (West 2014)). ¶ 26 On appeal, defendant argues that the trial court erred by denying her motion to quash and suppress evidence. Specifically, she asserts that the police lacked reasonable suspicion to detain or probable cause to arrest Campbell, and therefore lacked authority to follow him into their apartment. Because the police, according to defendant, were unlawfully in the apartment, they also unlawfully conducted the protective sweep which led to her arrest and the discovery of the narcotics in the bedroom. Thus, defendant contends that the narcotics were the fruit of an unlawful search and, therefore, should have been suppressed. ¶ 27 We apply a two-part standard of review when reviewing a trial court's ruling on a motion to quash arrest and suppress evidence. People v. Almond, 2015 IL 113817, ¶ 55. A trial court's findings of fact are afforded great deference and will be reversed only if they are against the manifest weight of the evidence. Id. We review de novo the trial court's ultimate legal ruling as to whether the evidence should be suppressed. Id. 10 ¶ 28 " 'Both the fourth amendment to the United States Constitution, which applies to the states via the fourteenth amendment (Mapp v. Ohio, 367 U.S. 643 (1961)), and article I, section 6, of the Illinois Constitution of 1970, guarantee Illinois citizens the right to be free from unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6.' " People v. Holmes, 2017 IL 120407, ¶ 25 (quoting People v. Gaytan, 2015 IL 116223, ¶ 20). "Reasonableness, under those provisions, requires that '[a]n arrest executed without a warrant is valid only if supported by probable cause.' " People v. Johnson, 408 Ill. App. 3d 107, 112 (2010) (quoting People v. Jackson, 232 Ill. 2d 246, 274-75 (2009)). ¶ 29 An officer has probable cause to arrest a suspect when the facts known to the officer at the time of the arrest are sufficient to lead a reasonably cautious person to believe that the suspect has committed a crime. Jackson, 232 Ill. 2d at 275. The existence of probable cause depends upon the totality of the circumstances at the time of the arrest. People v. Love, 199 Ill. 2d 269, 279 (2002). The standard for determining whether probable cause exists is probability of criminal activity, not proof beyond a reasonable doubt. People v. Lee, 214 Ill. 2d 476, 485 (2005). A police officer's factual knowledge, based on prior law-enforcement experience, is a relevant factor when considering whether probable cause existed at the time of arrest. People v. Harris, 352 Ill. App. 3d 63, 67 (2004). Under the exclusionary rule, if a defendant is arrested without probable cause, the evidence obtained from that arrest is suppressed as fruit of the poisonous tree. See People v. Bernard, 2015 IL App (2d) 140451, ¶ 12. ¶ 30 However, in Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court recognized a limited exception to the probable cause requirement. In Terry, the Court held that, under appropriate circumstances, a police officer may briefly stop a person for investigatory purposes and, if 11 necessary for safety, conduct a limited protective search for weapons. Terry, 392 U.S. at 30; see also People v. Flowers, 179 Ill. 2d 257, 262 (1997). Under this exception, a police officer may briefly detain an individual for temporary questioning if the officer reasonably believes that the person has committed, or is about to commit, a crime. Terry, 392 U.S. at 22; see also 725 ILCS 5/107-14 (West 2014) (Terry standard codified in the Illinois Code of Criminal Procedure of 1963). Additionally, if the officer reasonably believes that the suspect is armed and dangerous, the officer may conduct a limited search for weapons, commonly referred to as a "frisk." Id. at 24. In determining whether a Terry stop is valid, we look at whether, based on the facts available to the police officer, the police action was appropriate. People v. Thomas, 198 Ill. 2d 103, 109 (2001). "To justify the intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences therefrom, reasonably warrant that intrusion." Id. ¶ 31 In general, the fourth amendment prohibits a warrantless and nonconsensual entry into a suspect's home to make an arrest, even with probable cause. Payton v. New York, 445 U.S. 573, 576 (1980). Defendant asserts that the police lacked both probable cause to arrest and reasonable suspicion to stop Campbell, and therefore, they could not lawfully enter her residence. ¶ 32 We turn first to the issue of whether the police had reasonable suspicion to conduct an investigatory stop on Campbell pursuant to Terry or probable cause to arrest him. Defendant points out that mere possession of a gun is not necessarily a crime, and therefore, from the officers' perspective, Campbell's possession of the gun could have been legally permissible. However, defendant ignores that police may permissibly approach individuals to ask questions, even potentially incriminating ones, without suspecting criminal activity. People v. Luedemann, 12 222 Ill. 2d 530, 549 (2006) (citing Florida v. Bostick, 501 U.S. 429, 439 (1991)). The officers, therefore, were well within their rights to attempt to approach Campbell to inquire about the gun that they could plainly see. Regardless, the officers testified that the openly displayed gun, along with the surrounding circumstances, gave rise to their suspicion that defendant was involved in criminal activity. Both Bouch and Lesch testified that, in addition to observing Campbell openly holding a gun, he was also walking out of a vacant apartment in the hallway of a decrepit building that was known for narcotics sales, shootings, and robberies. Contrary to defendant's assertion, the officers' attempt to stop Campbell was objectively appropriate given these circumstances, and thus provided the requisite reasonable suspicion to conduct an investigatory Terry stop. ¶ 33 However, when the police attempted to stop Campbell by announcing their office, Campbell looked at the officers, tucked the gun into his waistband, and fled down the hallway into apartment 403. Thus, Campbell's own conduct prevented the police from actually conducting the Terry stop. While unprovoked flight, on its own, in a high-crime area generally gives rise only to a reasonable suspicion that the individual was involved in criminal activity (Illinois v. Wardlow, 528 U.S. 119, 124 (2000)), in this case, the totality of the circumstances, including defendant's immediate flight to avoid the investigatory stop, gave rise to probable cause to arrest Campbell. Although defendant argues that mere possession of a gun is insufficient to give an officer probable cause for arrest, in these circumstances, we find Campbell's open display of the gun, the high-crime nature of the building, and Campbell's exit from a vacant apartment and flight upon seeing the officers, taken together, were sufficient to elevate the 13 officers' reasonable suspicions to probable cause to arrest Campbell for unlawfully possessing a firearm. See Love, 199 Ill. 2d at 279 (the existence of probable cause depends on the totality of the circumstances at the time of the arrest). ¶ 34 Having determined that the police had probable cause to arrest Campbell, we now turn to whether they properly entered apartment 403 to effectuate his arrest and conduct a protective sweep of the residence. We first note that the parties disputed at trial whether apartment 403 was defendant's residence or whether the building was abandoned. The trial court found that the State failed to prove that the building was abandoned. It did not make an explicit factual finding on the record regarding whether defendant and Campbell actually resided in the apartment, nor did it make credibility determinations to indicate whether it believed defendant's testimony. Nevertheless, the State appears to concede in its brief on appeal that it did not prove the building was abandoned and not defendant's residence. ¶ 35 A warrantless and nonconsensual entry into a suspect's home to make an arrest, even with probable cause, is generally prohibited by the fourth amendment. Payton, 445 U.S. at 586-87. The fourth amendment provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause." U.S. Const., amend. IV; accord Ill. Const.1970, art. I, § 6. "It is a basic principle of the fourth amendment that searches and seizures inside a home without a warrant are presumptively unreasonable." People v. Wear, 229 Ill. 2d 545, 562 (2008) (citing Payton, 445 U.S. at 586-87). However, " 'because the ultimate touchstone of the Fourth Amendment is 'reasonableness,' the warrant requirement is subject to certain exceptions.' " Wear, 229 Ill. 2d at 563 (quoting Brigham City v. Stuart, 547 U.S. 398, 14 403 (2006)). As relevant here, police officers "may make a warrantless entry onto private property to *** engage in hot pursuit of a fleeing suspect." (Internal quotations omitted) Id. (quoting Brigham City, 547 U.S. at 403). "Hot pursuit" of a suspect "means some sort of a chase." United States v. Santana, 427 U.S. 38, 42-43 (1976). ¶ 36 Defendant argues that the hot pursuit exception to the warrant requirement does not apply because the police lacked probable cause to arrest Campbell. As mentioned above, however, the police had probable cause to arrest Campbell once he started fleeing down the hallway. The Supreme Court has explained in Santana that a suspect may not defeat an arrest that was set in motion in a public place by escaping to a private place. Santana, 427 U.S. at 42. Despite defendant's brief assertion that the hallway was private, the testimonial evidence showed that the officers entered what they believed to be an abandoned building that was blocked by dumpsters and trash. As defendant concedes in his brief, no evidence was presented that the building was locked to the public. A tenant has no reasonable expectation of privacy in common areas of an apartment building that are accessible to other tenants and their invitees. People v. Lyles, 332 Ill. App. 3d 1, 7 (2002). Thus, once Campbell, armed with a firearm, fled and was immediately pursued by the officers, under the hot pursuit doctrine, they could properly follow him into the residence. Santana, 427 U.S. at 42-43. ¶ 37 Given that we find the police lawfully entered apartment 403 to arrest Campbell, we next address whether they properly conducted a protective sweep, which led to discovery of the narcotics and defendant's arrest. A protective sweep is aimed at protecting the arresting officers. Maryland v. Buie, 494 U.S. 325, 335 (1990). To lawfully conduct a protective sweep, an officer, after lawfully arresting a suspect in his home, may check for dangerous individuals in the home 15 if the officer possesses specific articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer to believe the home harbors persons dangerous to those on the arrest scene. Id. at 334. A protective sweep, justified by the circumstances, is not a full search of the premises, and may extend only to a cursory inspection of spaces where a person may be found. Id. at 335. The sweep may last no longer than is necessary to dispel the reasonable suspicion of danger and no longer than it takes to complete the arrest and depart the premises. Id. at 335-36. ¶ 38 Here, we find that Lesch testified to specific articulable facts which, taken together with the rational inferences therefrom, warranted his belief that, for officer safety, a protective sweep for other dangerous individuals was necessary. Although Lesch acknowledged that he did not hear anything that made him fear for his safety, he testified that the "entire situation" prompted him to "clear" the rest of apartment 403. The "entire situation" was based on the building's reputation for crime and violence and the fact that, in his experience, having all three officers "dealing with" one individual could lead to ambush. He also testified that he had been to the building before and knew there were squatters and drug users sleeping in the building, indicating that there was a possibility that other people were present. His testimony revealed the sweep was cursory, he had his gun drawn, he walked only five feet before he saw defendant lying on a mattress, and his view was not obstructed by a door. In light of these circumstances, we cannot say that the protective sweep that led to the discovery of the evidence and defendant's arrest was unlawful. ¶ 39 Moreover, because the testimonial evidence established that defendant and the narcotics were readily visible during the sweep and the illicit nature of the narcotics immediately apparent, 16 the seizure of the evidence and defendant's arrest were also proper. The plain view doctrine permits the seizure of evidence discovered by an officer who, although not looking for evidence against the defendant, inadvertently comes across the incriminating object. Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971). For a seizure under the plain view doctrine to be justified, three requirements must be met: "(1) the officer must be lawfully present in the location from which he can plainly see the evidence; (2) it must be 'immediately apparent' that the object in plain view is evidence; and (3) the officer must have a lawful right of access to the object itself." People v. Pierini, 278 Ill. App. 3d 974, 977 (1996). ¶ 40 As noted above, Lesch's limited sweep for officer safety was proper, and he was therefore lawfully in the doorway of the bedroom where he discovered defendant and the narcotics. From the doorway, Lesch observed defendant lying next to bags of what he suspected to be crack cocaine and "large piles of money," which she immediately attempted to conceal. Further, Lesch had a lawful right of access to the narcotics because, as previously discussed, he and the other officers had lawfully pursued Campbell into the apartment under the hot pursuit doctrine coupled with probable cause to arrest him. In sum, we find that the narcotics evidence was not the fruit of an illegal search. Accordingly, the trial court did not err in denying defendant's motion to quash arrest and suppress evidence. ¶ 41 Because we do not find that the evidence was illegally obtained, we need not address defendant's contention that without the evidence the State failed to prove her guilt beyond a reasonable doubt. ¶ 42 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. ¶ 43 Affirmed.