Petition for Writ of Certiorari — Garcia v. Illinois

FILED

001668 APR 3 0 2001

NO. ——oerice oF TWe CLERK

In the

Supreme Court of the United States

ANGEL D. GARCIA,

Petitioner,

V.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

On Petition For A Writ OF CERTIORARI

To Tue APPELLATE Court OF ILLINOIS

PETITION FOR A WRIT OF CERTIORARI

JoHN P. BUCKLEY

Counsel of Record

EDWARD G. RENNER

UNGARETTI & HARRIS

3500 THREE First NATIONAL PLAZA

CHICAGO, ILLINOIS 60602

(312) 977-4400

Counsel for Petitioner

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

»

QUESTION PRESENTED FOR REVIEW

Whether it is constitutionally reasonable for police

officers, who secure a residence from the outside under this

Court’s authority in Segura v. United States, 468 U.S. 796

(1984) and J/llinois v. McArthur, 531 U.S. ___, 121 S. Ct.

946 (2001), to enter the home to seize evidence inside the

home without a warrant or an existing exception to the

warrant requirement?

LIST OF PARTIES TO THE PROCEEDING

Parties Below:

Petitioner is Angel D. Garcia, presently incarcerated.

Respondent is the People of the State of Illinois.

Parties Before This Court:

The parties before this Court are the same parties as

below. The Petitioner before this Court is the Appellant

below. The Petitioner has no corporate affiliations. The

Respondent before this Court is the Appellee below.

il

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .......... i

LIST OF PARTIES TO THE PROCEEDING ....... il

pp gi hes re ere ree ‘ces oe

CONSTITUTIONAL PROVISION INVOLVED ..... l

DUPRE IMOIUE GW BREE CADE cc cece ese ewes 2

REASONS FOR GRANTING THE WRIT ......... 4

I. CERTIORARI SHOULD BE GRANTED

BECAUSE THE ILLINOIS APPELLATE

COURT IMPROPERLY EXPANDS SEGURA

TO ALLOW POLICE WHO SECURE A

HOME TO NOW ENTER IT WITHOUT

SEEKING OR OBTAINING A WARRANT ... 4

ill

II. THIS COURT SHOULD GRANT

CERTIORARI BECAUSE THE ILLINOIS

APPELLATE COURT ORDER

CONTRADICTS THIS COURT’S

PREVIOUS FOURTH AMENDMENT

Fe eee ee eae eee eee 6

A. The Illinois Appellate Court

Order Eliminates The Warrant

Requirement Inherent In Fourth

Amendment Case Law ............ 7

B. The Illinois Appellate Court

Order Improperly Diminishes

The Established Fourth

Amendment Expectation Of

Privacy In The Home ............. 9

C. The Illinois Appellate Court

Order Improperly Creates New

And Expands Old Exceptions

To The Fourth Amendment

Warrant Requirements............. 10

Ii. THIS COURT SHOULD GRANT

CERTIORARI BECAUSE THE QUESTION

PRESENTED, AND THE POLICE

CONDUCT THAT GIVES RISE TO IT, IS

LIKELY TO BE REPEATED UNTIL THIS

COURT RULES ON THE ISSUE.......... 12

eR ere eer re ee err rd ee 13

APPENDIX

A.

Appellate Court of Illinois Order, |

eS ree la

Appellate Court of Illinois Order

Denying Motion to Reconsider,

WSO on a CCRT PR l4a

Illinois Supreme Court Order Denying

Petition for Leave to Appeal,

MENGE: 643k CS OE ee Oe ie 16a

TABLE OF AUTHORITIES

Cases Page(s)

Chimel v. California,

395 U.S. 752 (1969) VEYEVTT Oey 9

Coolidge v. New Hampshire.

403 U.S. 443 (1971) ts. ieee ee

Flippo v. West Virginia,

528 U.S. 11 (1999) ..... 2... eet

illinois v. McArthur.

531 U.S. ___, 121 S. Ct. 946

(Feb. 20, 2001)... eee. . passim

Jones v. United States.

IST U.S. 493 (1DSB) . ww cc ccc cc ccccn. &

Mincey v. Arizona,

437 U.S. 385 (1978)... 2.0.2 9

Payton v. New York,

S435 U.S. 373 GSD) . wo vc és bese 8

People v. Garcia,

No. 1-98-4322

(Ill. App. Ct., June 26, 2000)... 2.2... passim

People v. Garcia,

No. 90540, 2001 Ill. LEXIS 88

(il. Som. 2D, SON ow. 6 sce ace eee l

Segura v. United States,

468 U.S. 796 (1984)... 6. eee eee ees passim

United States v. Chadwick,

433 U.S. 1 (1977) .. 2. eee ee eee ee eees 10

United States v. Van Leeuwen,

397 U.S. 249 (1970)... ee ees 7

Vale v. Louisiana,

399 U.S. 30 (1970) ....-- eee eee eens y

Constitutional Provisions

U.S. Const., Amend. IV ......---- eee eee? passim

PRAYER FOR RELIEF

Petitioner, Angel Garcia, respectfully asks this

Honorable Court to issue a writ of certiorari to the Appellate

Court of Illinois, First District, to review that court’s

judgment and order entered June 26, 2000.

OPINIONS BELOW

The Appellate Court of Illinois, First District’s

unpublished order, No. 1-98-4322 (Ill. App. Ct., June 26,

2000) is reproduced in App. A at la-1l3a. The Illinois

appellate court’s denial of the Petition for Rehearing, No. 1-

98-4322 (October 30, 2000) is reproduced in App. A at 14a-

15a. The Illinois Supreme Court’s denial o. the Petition for

Leave to Appeal, No. 90540, 2001 Ill. LEXIS 88 (Ill. Jan.

29, 2001) is reproduced in App. A at 16a.

JURISDICTION

The Illinois Supreme Court denied the Petition for

Leave to Appeal on January 29, 2001. Petitioner invokes this

Court’s jurisdiction under 28 U.S.C. § 1257(a), since, in the

proceedings in the state courts of Illinois, he asserted a

violation of his rights under the United States Constitution.

CONSTITUTIONAL PROVISION INVOLVED

The Constitution of the United States, Fourth

Amendment:

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, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

STATEMENT OF THE CASE

1. Warrantless Reentry

a. An initial exigent search

On June 30, 1996, at 11:00 a.m., Chicago Police

Officers Kischner and Valezquez arrived at an apartment

building in Chicago, Illinois to investigate a possible burglary

in progress on the third floor. A man in apartment 3A

reported what he thought was a burglary in apartment 3B

across the hall, the only other apartment on his floor.

Kischner unlocked the door to apartment 3B by reaching his

hand through a hole in the door. The officers then entered the

apartment and looked around briefly for offenders or victims,

but no one was present. App. A at 2a. '

The officers saw containers of suspected cocaine and

marijuana on the living room floor. Kischner pushed the

pieces of the door back into place and the police left. App.

A at 2a.

‘Citations to the lower courts’ orders are designated “App. __ at

" Citations to the Common Law Record are designated “_..*

Citations to the Transcript of Proceeding are designated by the

alphabetical order of the individual hearing transcript (“A, B, C”)

and the page number of that transcript, for example “E. 11” or “R.

128.”

b. Securing of the premises and a

subsequent arrest

The apartment was then “secured.” Kischner directed

several other officers to set up surveillance at the building.

App. A at 2a. Surveillance continued until Petitioner’s arrest

around 3:00-4:00 p.m., between four and five hours later.

App. A at 3a. During that time, police did not obtain or even

seek a warrant, although several officers were available and

all were in radio contact with each other. E. 11; R. 128, 138;

App. A at 3a.

The officers arrested Petitioner while he was turning

the key that he placed in the lock to his apartment door. App.

A at 3a. At the suppression hearing and at tria!, Officer

Kischner testified that he arrested Petitioner when he “heard

the lock turn.” E. 24; R. 129; CL. 90. Petitioner had not

opened the apartment door. E. 21-24; R. 130.

c. A second warrantless entry and a

warrantless search and seizure

After taking Petitioner into custody outside his

apartment, Officer Kischner then reentered the apartment.

App. A at 3a. At no time between their first entry and this

second entry to Petitioner’s apartment did the Chicago police

obtain consent or a search warrant. E. 8-9, 26. After

reentering the apartment, the officer seized the suspect

contraband. He also recovered a lease and a utility bill in

Petitioner’s name. App. A at 3a.

2. Trial and Appellate Court Rulings

The trial court denied Petitioner’s Motion to Suppress,

finding that the requirement of a warrant was “overly

3

technical” and that the police properly “went back in and

picked up the narcotics they could have seized when they first

entered the premises.” O. 17-19. The appellate court

interpreted the trial court as holding “that the officers did not

need a warrant to return for the minimal purposes of

removing the contraband they had earlier observed.” App. A

at 3a. The appellate court upheld the reentry and affirmed the

conviction, but on a different ground.

The Illinois appellate court, relying on Part IV of

Segura v. United States, 468 U.S. 796, 805-13 (1984)

(Burger, C.J. and O’Connor, J.) held that the Chicago police

seized the entire premises, after finding the contraband, and

were thus justified in reentering Petitioner’s apartment, after

his arrest, without a warrant. App. A at 5a-6a. As part of its

judgment, the court granted the State’s request and assessed

Petitioner $100.00 as costs for the appeal. App. A at 13a.

REASONS FOR GRANTING THE WRIT

I. CERTIORARI SHOULD BE GRANTED

BECAUSE THE ILLINOIS APPELLATE COURT

IMPROPERLY EXPANDS SEGURA TO ALLOW

POLICE WHO SECURE A HOME TO NOW

ENTER IT WITHOUT SEEKING OR

OBTAINING A WARRANT

The Illinois appellate court’s order in this case

misconstrues and unjustifiably expands this Court’s holding in

Segura v. United States, 468 U.S. 796 (1984). In fact, the

Illinois appellate court’s order goes well beyond this Court’s

most recent decision in /llinois v. McArthur, 531 U.S. ___,

121 S. Ct. 946 (2001), holding that the police may now do

away with the warrant requirement altogether. The Illinois

appellate court expands the police’s temporary constitutional

4

permission for an exigent search and securing of the premises

while they seek a warrant into a justification for a warrantless

reentry into the home, after any exigency had passed, to seize

the suspect contraband. The Illinois appellate court thereby

transforms the constitutional inch into an unconstitutional

mile.

Based on Segura and other decisions, this Court

recently held in McArthur that police may secure a residence

from the outside, for a reasonable period of time while a

warrant is being sought and obtained. 121 S. Ct. at 948.

Both Segura and McArthur emphasize the different, and

lesser, interests implicated by securing the premises while a

warrant is sought and obtained. McArthur emphasized the

fact that no search took place and no evidence was obtained

until after police obtained a warrant, as well as that the

seizure of the premises was considerably less intrusive than a

warrantless entry into the home. 121 S. Ct. at 950-51, 953.

The Segura majority upheld the admission of evidence seized

before police obtained a warrant only because the warrant was

based on completely independent grounds; the Segura Court,

however, unanimously reaffirmed that warrantless entries

without exigent circumstances are unconstitutional. 468 U.S.

at 798, 810, 813-14, and 820.”

7468 U.S. at 813-14 (BURGER, C.J., Part V, joined by WHITE,

J., POWELL, J., REHNQUIST, J., and O’CONNOR, J.) (finding

evidence admissible under the independent source doctrine); 468

U. S. at 798 (BURGER, C.J., Part I, joined by WHITE, J.,

POWELL, J., REHNQUIST, J., and O’CONNOR, J.); 468 U.S.

at 810 (BURGER, C.J., Part IV, joined only by O°’ CONNOR, J.);

and 468 U.S. at 820 (STEVENS, J., dissenting, joined by

BRENNAN, J., MARSHALL, J., and BLACKMUN, J.)

(reaffirming the illegality of warrantless entry and search).

The Illinois appellate court pays no respect to the

greater privacy interests implicated in a search and

warrantless entry into a person’s home. Instead, to support

the Chicago police’s illegal entry into Petitioner’s home after

his arrest, the appellate court goes where no American Court

has gone before. The Illinois appellate court allows an initial

lawful entry under exigent circumstances to justify a second,

warrantless, entry -- well after any exigency has passed, well

after police have secured the premises assuring the status quo

and well after any need to forego a warrant has been

eliminated. This holding, if allowed to stand, is a watershed

in Fourth Amendment jurisprudence.

This Court should grant certiorari and review the

order of the Illinois appellate court.

Il. THIS COURT SHOULD GRANT CERTIORARI

BECAUSE THE ILLINOIS APPELLATE COURT

ORDER CONTRADICTS THIS COURT’S

PREVIOUS FOURTH AMENDMENT

DECISIONS

This Court, in McArthur, drew the line at the

warrantless entry to the home. While McArthur condoned

securing the home for a limited period of time, to maintain

the status quo while police obtain a warrant, no warrantless

entry took place. 121 S. Ct. at 949. In contrast, the Illinois

appellate court crosses that line, allowing police to ignore the

warrant requirement completely. In Garcia, the police

secured the home from the outside and then reentered without

any attempt to seek or obtain a warrant. The order affirming

the subsequent warrantless entry to seize the evidence is

unprecedented. This Court should grant certiorari to address

this important issue.

A. The Illinois Appellate Court Order

Eliminates The Warrant Requirement ©

Inherent In Fourth Amendment Case Law

This Court has allowed temporary seizures where

needed to preserve evidence while police diligently sought

and obtained a warrant. See McArthur, 121 S. Ct. at 952;

United States v. Van Leeuwen, 397 U.S. 249, 253 (1970)

(reasonable suspicion justifies detaining package delivered for

mailing while warrant is sought). In contrast, the police in

this-case dispensed with the warrant requirement, consciously

opting not to seek a warrant but rather to reenter without a

warrant to seize the contraband and personal papers. The

police arrested Petitioner outside the closed door of his

apartment. E. 24-26; R. 116. The police then reentered his

apartment without a warrant and without the consent or

exigent circumstances necessary to allow a warrantless entry.

E. 8-9, 25-26; R. 116. The Illinois appellate court’s order

therefore conflicts with this Court’s authority.

The Illinois appellate court’s reliance on Part IV of the

Segura opinion (App. A at 5a-6a) is flawed. The Segura

Court unanimously reaffirmed that warrantless entries are

illegal. 468 U.S. at 798, 810, and 820.° The McArthur

Court upheld the temporary seizure of defendant’s trailer

home, for one to two hours while police obtained a warrant,

as considerably less intrusive than warrantless entry into the

home. 121 S. Ct. at 953. Unlike the police in Segura or

468 U. S. at 798 (BURGER, C.J., Part I, joined by WHITE, J.,

POWELL, J., REHNQUIST, J., and O’>CONNOR, J.); 468 U.S.

at 810 (BURGER, C.J., Part IV, joined only by O°’CONNOR, J.);

and 468 U.S. at 820 (STEVENS, J., dissenting, joined by

BRENNAN, J., MARSHALL, J., and BLACKMUN, J.).

even McArthur, the Chicago police in this case made no

attempt to obtain or even seek a warrant. Therefore, neither

Segura, nor McArthur, supports the police’s warrantless

reentry in this case.

This Court has long honored the basic rule that the

police may not enter and make a warrantless seizure. The

“chief evil” against which the fourth amendment was intended

to protect the people was the “physical entry of the home.”

Payton v. New York, 445 U.S. 573, 585 (1980). Therefore,

any entry of a home without a warrant is presumptively

unreasonable. Payton, 445 U.S. at 586. The Payton Court

recognized “the long-settled premise is that, absent exigent

circumstances, a warrantless entry to search for weapons or

contraband is unconstitutional even when a felony has been

committed and there is probable cause to believe that

incriminating evidence will be found within.” Payton, 445

U.S. at 587-88. If an officer merely needed probable cause

in order to enter a suspect’s home, “the provisions of the

Fourth Amendment would become empty phrases, and the

protection it affords largely nullified.” Jones v. United

States, 357 U.S. 493, 498 (1958).

Because a warrantless entry is presumed to be

unreasonable, the Government has the burden of proving that

the warrantless entry was conducted pursuant to an exception.

Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971). The

Illinois appellate court does not enforce this requirement. In

Garcia, the police could have seized the contraband during

the initial, lawful, exigent search. But the police instead

consciously decided to leave the contraband in the home,

eliminated any potential exigency by securing the premises,

and then willfully ignored the warrant requirement by

reentering the home to seize the contraband. This concept, in

which the police do not even think about seeking a warrant,

8

is a dangerous intrusion on the rights of all citizens. To

maintain meaning in the Fourth Amendment, this Court must

grant the petition and reverse the Illinois appellate court’s

ruling.

B. The Illinois Appellate Court Order

Improperly Diminishes The Established

Fourth Amendment Expectation Of Privacy

In The Home

This Court has acknowledged the sanctity of a

person’s home in a long line of landmark cases from Chimel

v. California, 395 U.S. 752 (1969), Vale v. Louisiana, 399

U.S. 30 (1970), and Mincey v. Arizona, 437 U.S. 385 (1978)

(holding that warrantless search of defendant’s home, a

murder scene, violated defendant's Fourth Amendment

rights), to the more recent Flippo v. West Virginia, 528 U.S.

11 (1999) (unanimous decision reaffirming Mincey v.

Arizona). The Illinois appellate court order contradicts all of

these precedents.

In Mincey, this Court found the police minimized the

possibility of loss of evidence by posting police to guard the

door. This reinforced the warrant requirement for entry to

the home. 437 U.S. at 393-94. In Flippo, this Court’s per

curiam opinion reaffirmed Mincey and held that a warrantless

reentry into a cabin rented by the defendant, where the police

had already removed him from the premises, was

unconstitutional. 528 U.S. at 11-12. Similarly, the police

violated Petitioner’s privacy interest in his home when they

reentered his apartment and, thus, improperly conducted a

“search” as well as a “seizure” under the Fourth Amendment.

This Court must therefore grant the petition, review

and reverse or, in the alternative, issue a summary disposition

on the merits based on this Court’s prior precedent.

C. The Illinois Appellate Court Order

Improperly Creates New And Expands Old

Exceptions To The Fourth Amendment

Warrant Requirement

In an effort to support its order effecting a sea change

in Fourth Amendment jurisprudence, the Illinois appellate

court creates new and expands old exceptions to established

Fourth Amendment law.

First, The Illinois appellate court’s basis for ignoring

the warrant requirement, that the police did not know when

Defendant would arrive (App. A at 6a), does not justify the

failure to even seek a warrant. Obtaining a warrant would

require (at least) a phone call or (at most) the involvement of

only one officer at the scene, and would not have affected the

police surveillance and/or securing of the premises. The

Illinois appellate court overlooks the fact that the police in

Garcia, having secured the premises, and later having

arrested Petitioner, had no excuse for not seeking a warrant.

This Court has already held that police must get a warrant

before conducting a search where, as in Petitioner’s case,

police have already detained the suspect and secured the item

to be searched and there is no danger to police or risk of

losing the evidence. See, e.g., United States v. Chadwick,

433 U.S. 1, 15 (1977) (holding that warrant required to

search footlocker seized after defendant’s arrest).

The appellate court’s concern that the police did not

know when a suspect would return (App. A at 6a) is

irrelevant to the issue of whether the police needed a warrant

10

to reenter. The police had the premises secured at all times

from their initial departure through their subsequent

warrantless reentry. With precautions already taken to

preserve the status quo, and an immediate arrest accomplished

before Petitioner entered the home, police had already

eliminated any excuse to go back in without a warrant.

Lacking both consent and any exigent circumstances, the

warrantless reentry was constitutionally inexcusable.

Second, the Illinois appellate court’s argument that

police did not reenter the apartment to search it, but rather

only to retrieve evidence they already knew was present

(App. A at 6a) is also contrary to established precedent. This

Court in Coolidge held that plain view alone is never enough

to justify warrantless seizure. 403 U.S. at 468. The

Coolidge court emphasized that where (as in Petitioner’s case)

the police knew the location of the evidence and intend to

seize it, there is no legal inconvenience in obtaining a

warrant. 403 U.S. at 470-71. These principles all apply °

here.

Plainly put, exigent circumstances are a temporary

pass, not a permanent license, to enter. The lower court’s

application of the novel theory that the lawful first entry

constituted a timeless invitation to reenter, without a warrant,

creates an unconstitutional revolving door to a person’s home.

This Court should grant the petition to address this compelling

issue.

11

Iii. THIS COURT SHOULD GRANT CERTIORARI

BECAUSE THE QUESTION PRESENTED, AND

THE POLICE CONDUCT THAT GIVES RISE TO

IT, IS LIKELY TO BE REPEATED UNTIL THIS

COURT RULES ON THE ISSUE

This Court has determined that securing a home from

the outside is constitutionally permissible while police await

a warrant based on probable cause. McArthur, 121 S. Ct. at

953. This procedure is being utilized and is likely to be

utilized more frequently in the future.

With such increased use is also the danger of increased

abuse. Unfortunately, the Chicago police have already moved

beyond McArthur’s permissible conduct to another level. The

Chicago police are now dispensing with the warrant

requirement altogether by expanding the concept of temporary

seizure to allow warrantless entry, where the police have

decided they have probable cause. The types of

unconstitutional intrusions in this case are going to continue

unless this Court clarifies and again draws the line in the

proverbial sand, limiting the circumstances in which

warrantless entries may be conducted and the scope of such

intrusions on the privacy rights guaranteed by the Fourth

Amendment to the Constitution of the United States.

If this Court declines to review this case, the denial of

Certiorari will improperly, but certainly, be viewed as a free

pass to pursue the conduct at issue in this case. The Chicago

police are already doing it. The State of Illinois is already

claiming it is constitutionally permissible. And the Illinois

appellate court is approving it, as well as assessing fees

against those, like Petitioner, who challenge it. App. A at

13a. This significant expansion of Segura and McArthur must

be reviewed.

12

CONCLUSION

For the aforementioned reasons, Petitioner, Angel

Garcia, respectfully requests that this Honorable Court grant

Certiorari, reverse the order of the Appellate Court of

Illinois, First District, and remand for further proceedings.

In the alternative, Petitioner respectfully requests that this

Court enter a summary disposition on the merits directing the

Appellate Court of Illinois to vacate the conviction and enter

___judgment for the Petitioner.

Respectfully submitted,

JOHN P. BUCKLEY

Counsel of Record

EDWARD G. RENNER

UNGARETTI & HARRIS

3500 Three First National Plaza

Chicago, Illinois 60602

(312) 977-4400

Counsel for Petitioner

13

APPENDIX A

IN THE APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

FIRST DIVISION

[Filed June 26, 2000]

No. 1-98-4322

THE PEOPLE OF THE STATE

OF ILLINOIS,

Plaintiff-Appellee,

ANGEL GARCIA,

)

)

)

)

Vv. )

)

)

Defendant-Appellant. )

)

Appeal from the Circuit Court of Cook County.

No. 96 CR 19120

Honorable Clayton Jay Crane, Judge Presiding.

ORDER

Following a bench trial, defendant Angel Garcia was

found guilty of possessing more than 900 grams of a

la

Court of Appeals Order - 6/26/00

controlled substance (cannabis) and sentenced to 10 years in

prison. On appeal, he contends that the police improperly

seized the evidence from his apartment and that the trial court

improperly denied his challenge to the chain of custody

evidence because of differing testimony regarding the weight

of the contraband and the fact one expert testified in violation

of Illinois Supreme Court Rule 412. 134 Ill. 2d R. 412.

Prior to trial, a hearing was held on defendant's

motion to quash his arrest and suppress the evidence. Veteran

Chicago police officer Bruce Kischner (misspelled Kirshner

in transcripts of pretrial hearings) testified at both the pretrial

hearing and at trial. At 11:30 a.m. on June 30, 1996, he and

Officer Velazquez responded to a call of a burglary in

progress in apartment 3B at a six-flat apartment building at

2957 North Talman Avenue in Chicago. The officers arrived

within minutes of the call, and Officer Kischner ran to the

third floor. There he encountered the tenant of apartment 3A,

Mr. Jones, standing in the doorway holding a telephone.

Jones said he had heard noise in apartment 3B and had called

the police after he observed someone breaking into that

apartment, the only other apartment on that floor. Officer

Kischner made a warrantless entry into apartment 3B by

reaching through a hole which had been punched through the

door. He looked around the apartment briefly for offenders or

possible victims, but no one was present. Near the door on the

floor of the living room were two clear plastic "Tupperware"

containers, without covers. The containers contained 32 large

plastic bags of marijuana and three bags of cocaine wrapped

as "kilos" in plastic and brown tape. Kischner replaced the

piece of wood that had been punched out of the door, and he

and his partner left after securing the apartment.

2a

Court of Appeals Order - 6/26/00

Officer Kischner directed several other officers to set

up surveillance of the building while he spoke to the

building's owner who told him that defendant rented

apartment 3B. She described defendant as a short, thin,

bearded Hispanic man. Officer Velazquez waited on the third-

floor landing.

Between 3 and 4 p.m. on that date, Officer Kischner

received a radio broadcast that defendant had entered the

building. He then observed defendant climbing the stairs.

Defendant was stopped and arrested after he turned the lock

in the door to apartment 3B. Defendant's driver's license and

apartment keys were taken. The officer then reentered

apartment 3B and removed the contraband. He also recovered

a lease and a utility bill in defendant's name but no currency

or weapons. No one had entered the apartment during that

period.

The trial court held that exigent circumstances existed

to permit the officers to enter the apartment after which they

saw the contraband in plain view. The court said that the

officers did not need a warrant to return for the minimal

purpose of removing the contraband they had earlier

observed. The court also denied defendant's two motions to

reconsider. In ruling on the latter motion, the court stated that

the police had probable cause to arrest defendant when he

arrived at his apartment.

The parties stipulated that the telephone and electric

service records established that defendant was the customer of

record for apartment 3B on June 30, 1996.

3a

Court of Appeals Order - 6/26/00

Defendant testified at trial that he rented apartment 3B

in the spring of 1995 and moved out in early May 1996 when

Jose Rodriguez came to live in the apartment. Defendant

testified that he told the building owner that Rodriguez was

going to assume the lease and put the utilities in his name. He

went to the apartment on June 30, 1996, to pick up the rent

from Rodriguez who was supposed to pay one-half. He was

also going to remove the bed, the television set, and the chest.

He denied having been in the apartment for over two weeks

before his arrest, and denied that there were any drugs in the

apartment. .

On cross-examination, defendant admitted that he had

left some of his job uniforms in the apartment and stated that

he had moved out "a few days" before his arrest. He admitted

that he never told the owner that he was going to move out of

the apartment, that he did not ring a buzzer downstairs to gain

entry on the day of his arrest and that he retained his own set

of keys for the apartment.

Defendant first contends that his Fourth Amendment

rights were violated when, without a warrant, the police

searched his apartment a second time, seizing the contraband

they had earlier observed in plain view on their initial search

under exigent circumstances. We review the search and

seizure of the contraband from defendant's apartment de novo

since the facts are uncontroverted and the credibility of the

witnesses is uncontested. People v. Krueger, 175 Ill. 2d 60,

64 (1996); People \ v. McArthur, 304 Ill. App. 3d 395, 397

(1999) .

There are certain exceptions to the Fourth Amendment

~ requirement of a warrant before police may enter a residence.

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People v. Foskey, 136 Ill. 2d 66, 74 (1990). Defendant does

not challenge the police officers’ initial entry into his

apartment based on exigent circumstances in response to a call

regarding a burglary in progress. Nor does defendant address

a police officer's right to seize incriminating evidence without

a warrant if he plainly views it from a place from which he

has a lawful right to be and the object's incriminating

character is immediately apparent. Horton v. California, 496

U.S. 128, 136-37, 110 L. Ed. 2d 112, 122-23, 110 S. Ct.

2301, 2308 (1990). Here, Officer Kischner observed

contraband in defendant's apartment when he and his partner

lawfully entered looking for burglars or victims. The police

secured the apartment and placed it under surveillance until

defendant arrived. The issue is whether, after arresting

defendant on his doorstep, the officers' subsequent entry into

his apartment to seize the contraband which they had earlier

observed in plain view was proper. For the following reasons,

we find that the police seized the contraband by securing

defendant's apartment and placing it under surveillance. This

seizure continued until defendant arrived.

Observation of narcotics in plain view does not

constitute a search. Minnesota v. Dickerson, 508 U.S. 366,

375, 124 L. Ed. 2d 334, 345, 113 S. Ct. 2130, 2137 (1993).

The officers’ act of securing defendant's apartment in order

to prevent the destruction or removal of the evidence was not

an unreasonable seizure of either the dwelling or its contents.

Segura v. United States, 468 U.S. 796, 806-13, 82 L. Ed. 2d

599, 609-14, 104 S.Ct. 3380, 3386-90 (1984). Defendant's

possessory interest in the contraband was not violated by the

seizure. Segura, 468 U.S. at 813, 82 L. Ed. 2d at 614, 104S.

Ct. at 3390. The officers' conduct here was the equivalent of

a continuing seizure which gave them constructive possession

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Court of Appeals Order - 6/26/00

of the contraband. The police did not relinquish control of the

apartment to defendant or any one else. Rather, they

controlled access to the apartment by immediately setting up

surveillance. After the contraband was seen in plain view,

control of the apartment was never abandoned. When

defendant returned, probable cause existed for his arrest based

upon the neighbor's description and his apparent possessory

interest in the apartment because he had a key to enter it.

Moreover, although three hours ultimately elapsed

between the time the officers initially viewed the contraband

and the time defendant arrived at the apartment, the officers

had no way of knowing whether defendant would return in

three hours or three minutes. Also, the police did not reenter

the apartment to search it; rather, they went back to retrieve

the drugs they had previously observed in plain view. A

warrant is not required where a defendant is placed under

arrest for possession of drugs the police have already seized.

Whether the police waited for defendant inside the apartment

Or maintained surveillance from the outside is a distinction

without a difference.

The case on which defendant relies, People v. Von

Hatten, 52 Ill. App. 3d 338, 341-42 (1977), is

distinguishable. In Von Hatten, the police arrested defendant

for disorderly conduct, and a brief search was conducted

incident to that arrest. Subsequent to defendant's arrest, his

motel room was reentered and searched without a warrant.

Evidence seized during the second search was unrelated to the

crime for which defendant was arrested. Unlike the continuing

seizure of evidence in plain view in the instance case, the

police in Von Hatten conducted a thorough search when they

Court of Appeals Order - 6/26/00

reentered defendant's room based upon their suspicion that

they may have previously seen contraband.

Defendant also contends that the trial court improperly

denied his challenge to the chain of custody evidence because

of the different testimony regarding the weights of the

contraband. Within this argument defendant also objects to

McCurdy's explanation for the difference calling him a

"surprise witness" whose testimony was in violation of Illinois

Supreme Court Rule 412 and maintains that his testimony was

not factually based. 134 Ill. 2d R. 412. Defendant requests a

de novo review of the chain of custody issue, but ordinarily

the trial court's ruling on the admissibility of evidence is

reviewed on an abuse of discretion basis. People v. Harper,

279 Ill. App. 3d 801, 811-12 (1996).

The court in People v. Pavone, 241 Ill. App. 3d 1001,

1004 (1993), set forth the law regarding chain of custody

evidence:

"If an item cannot be readily identified or is

susceptible to alteration by tampering or

contamination, its chain of custody must

render it improbable that the item has been

contaminated, exchanged or subject to

tampering. [Citation.] In establishing the chain

of custody, the State is not required to exclude

all possibility of tampering; it is sufficient to

demonstrate that the exhibit has not been

changed in any important respect and that it

took reasonable protective measures since the

substance was seized. [Citation.] Unless

defendant provides actual evidence of

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tampering or substitution, the State need only

establish a stated probability that tampering or

substitution did not occur, and any deficiencies

go to the weight and not the admissibility of

evidence." Pavone, 241 Ill. App. 3d at 1004.

Here, Officer Kischner testified that he initially

observed two large plastic rectangular Tupperware containers

open on the floor of defendant's apartment. A green lid and

a white lid lay nearby. Each container contained several clear

plastic bags of a green plant-like substance. One of the large

containers also held two taped kilo-packages and three clear

plastic bags. Before submitting the suspected narcotics to the

crime laboratory, Officer Kischner weighed 2,726 grams of

the suspected cocaine and 13,287 grams of the suspected

cannabis. At trial, the officer identified the container with the

green lid, but the white lidded box was not offered. Officer

Kischner testified that the cocaine was now open and cut, but

he had only cut open the cocaine packaging "a little bit" to

look inside.

At the laboratory, the officer and a laboratory

employee counted 32 large plastic bags of marijuana and two

large bricks of cocaine. The packages of marijuana were

recovered from each of the two Tupperware containers. The

cocaine was in the container with the green lid which was

admitted into evidence at trial, sealed with tape as described

by Officer Kischner. -

Forensic expert Arthur Kruski testified that he

received the sealed two Tupperware containers less than two

weeks after the seizure. Kruski, who confirmed that the

containers showed the same inventory number identified by

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Officer Kischner, tested the 19 packages of cannabis, two

bricks of cocaine, and three bags of cocaine in the green

lidded container. In performing his analysis, Kruski testified

that he. repackaged the cannabis in a single large bag and the

cocaine into four separate bags. He placed his identification

marks, inventory number and his initials on each package

before returning them to the green lidded box and sealing it.

According to Kruski, the cannabis weighed 12,942.2 grams

and the cocaine weighed 2,298.34 grams. Kruski further

testified that the cannabis was divided equally between the

two containers.

On May 11, 1998, two years after the seizure, Officer

Kischner, defense counsel and an assistant State's Attorney

removed the inventoried property from the evidence section.

The green lidded container was sealed with Kruski's name on

the tape. The items in the container were removed,

photographed, replaced, and sealed with Officer Kischner's

initials.

A month later, forensic expert Clifford McCurdy

weighed and analyzed the contraband in the container with the

green lid. He testified that the seals on the containers were

broken and resealed with his initials. He identified the

inventory number, a heat sealed plastic bag with plant

material and four plastic bags containing a white powder.

There was also another plastic bag which contained the

packing from the drugs. McCurdy testified that he removed

the cocaine from its packaging and crushed it before analysis.

The cocaine weighed 2,294.9 grams and the cannabis weighed

6,405 grams.

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Defense counsel then objected to the prosecutor's

questions which called for McCurdy's explanation as to why

his weights were less than Kruski's. Counsel argued that

defendant had no notice that McCurdy would be called as a

witness "to speculate on the difference in weight." Initially,

the court found that defendant was entitled to notice before an

expert made such a determination. The prosecutor countered

that defendant had been given the telephone numbers of each

chemist in order to ask why the amounts differed and also that

an expert in the field of forensic chemistry did not need to

speculate on the reason for the weight difference.

The court then ruled that defendant had not stipulated

to the experts' divergent testimony regarding the weights of

the contraband, but that defendant was not taken by surprise

by the information. The court found that defendant's questions

regarding the weight divergence could be handled in cross-

examination. McCurdy was then examined as an expert and

qualified. Defense counsel stated that he had already

stipulated to McCurdy's credentials as an expert, but that his

objection continued because McCurdy did not have "personal

hands-on experience" regarding the handling of the

contraband two years earlier.

McCurdy testified that the cocaine weighed less than

it did during the initial testing first because a portion had been

removed for testing, the solvents used during production of

the drug evaporated over time, and the packaging contained

some cocaine residue. How much weight was lost depended

upon pressure, temperature, storage conditions, and humidity.

McCurdy had weighed the cocaine before removing his

sample for analysis. According to McCurdy, the loss of one

percent in weight over time was not surprising or unusual.

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McCurdy had seen losses of 15 to 20%, but his laboratory

had no policy pertaining to what an unusual weight loss would

be. The cocaine he tested was fairly dry.

Prior to closing argument, the trial court heard

argument regarding the chain of evidence. The court first

discarded Officer Kischner's weights because he weighed the

contraband in its packaging. The court then considered the

three gram difference between Kruski's weight and

McCurdy's weight. The court found there was nothing to

indicate tampering with the cocaine. It further found that the

reason for the difference in the weight of the cannabis was the

fact McCurdy had not weighed the cannabis in the white

lidded container.

We first consider the difference in evidence regarding

the weights of the contraband. The trial court did not abuse its

discretion in discarding the weights provided by Officer

Kischner who initially recovered and inventoried them.

Officer Kischner had clearly weighed the cannabis and

cocaine in their packaging, while Kruski and McCurdy had

removed the packaging prior to weighing the contraband. The

evidence also shows that McCurdy examined only items from

the green lidded box, which Kruski stated contained roughly

one-half the cannabis. This amount, 6,405 grams, is about

one-half of the amount Kruski weighed, 12,942 grams. Since

defendant presented no evidence of tampering other than the

difference in weights, the chain of custody of the evidence

was established and the trial court's admission of the evidence

was proper.

Secondly, defendant claims that McCurdy's

explanation regarding the difference in weights was a surprise

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Court of Appeals Order - 6/26/00

in violation of Illinois Supreme Court Rule 412 (134 Ill. 2d R.

412) and lacked scientific factual foundation. Whether an

individual is qualified as an expert is a question of the trial

court's discretion. People v. Miller, 173 Ill. 2d 167, 186

(1996). An individual may testify as an expert if his

experience and qualifications afford him knowledge not

common to laypersons and where such testimony will aid the

trier of fact. People v. Burgess, 176 Ill. 2d 289, 309 (1997).

Here, defendant stipulated to McCurdy's expertise and

challenged only McCurdy's personal knowledge of the

handling of the contraband. In our view, the trial court did not

abuse its discretion in permitting McCurdy to explain why

cocaine would decrease in weight over a period of two years.

Defendant also contends that the State violated Illinois

Supreme Court Rule 412 (134 Ill. 2d R. 412) by not tendering

a copy of McCurdy's report explaining the decrease in the

weights of the cocaine. Under Rule 412 (134 Ill. 2d R. 412),

the State must disclose an expert's reports. People v. Glenn,

233 Ill. App. 3d 666, 686 (1992). However, the rule does not

require the State to "disclose the fact that the expert has an

opinion, only the expert's reports and statements. No

authority exists to support defendant's assertion that the mere

existence of an opinion, which is not embodied in a report or

statement, must be disclosed." Glenn, 233 Ill. App. 3d at 686-

87. As McCurdy's report did not contain McCurdy's opinion

regarding the weight discrepancies, we reject defendant's

contention that the State violated Rule 412 (134 Ill. 2d R.

412). Defendant does not cite any case which states that the

mere existence of an opinion not embodied in a report or

statement must be suppressed if it is not disclosed.

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Court of Appeals Order - 6/26/00

Defendant also maintains that McCurdy did not

establish that his general explanations were based on accepted

scientific principles as required under Frye v. United States,

293 F. 1013 (D.C. Cir. 1923); People v. Basler, 304 Ill. App.

3d 230, 233-34 (1999) (applying the Frye standard in

Illinois). The Frye standard, however, applies to the

admission of novel scientific evidence. Miller, 173 Ill. 2d at

187; People _v. Eyler, 133 Ill.. 2d 173, 211 (1989) .

McCurdy's explanation for a loss in weight did not depend on

a novel scientific procedure or technique. It depended on

various factors known to contribute to loss of weight in

controlled substances.

We also find no basis for defendant's claim that

McCurdy's testimony should be rejected because it was not

based on facts in evidence. The evidence showed that two

years passed before McCurdy tested the substances, that some

of the cocaine was stuck to the wrapping, and that cocaine is

produced using solvents which evaporate over time.

Accordingly, the trial court did not abuse its discretion in

allowing McCurdy to give an explanation regarding the loss

in weights and the narcotics were properly admitted.

Based on the foregoing, the judgment of the trial court

is affirmed. As part of our judgment, we grant the State's

request and assess defendant $100 as costs for this appeal.

Affirmed.

RAKOWSKI, J., with FROSSARD, P.J., and

GALLAGHER, J., concurring.

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APPENDIX B

IN THE APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

[Entered October 30, 2000]

No. 1-98-4322

THE PEOPLE OF THE STATE

OF ILLINOIS,

Plaintiff-Appetlee,

ANGEL GARCIA,

)

)

)

)

v. )

)

)

Defendant-Appellant. )

)

Appeal from the Circuit Court of Cook County,

Criminal Division.

No. 96 CR 19120

The Honorable Clayton J. Crane, Presiding.

ORDER

This cause coming to be heard on Defendant-Appellant

Angel D. Garcia's Petition for Rehearing, the Court being

fully advised in the premises;

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IT IS HEREBY ORDERED that the Petition for

Rehearing is denied.

/s/

JUSTICE

/s/

JUSTICE

/s/

JUSTICE

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APPENDiX C

SUPREME COURT OF ILLINOIS

CLERK OF THE COURT

SUPREME COURT BUILDING

SPRINGFIELD, ILLINOIS 62701

(217) 782-2035

January 29, 2001

Mr. John P. Buckley

Ungaretti & Harris

3500 Three First National Plaza

Chicago, IL 60602

No. 90540 - People State of Illinois, respondent, v. Angel

Garcia, petitioner. Leave to appeal, Appellate

Court, First District.

The Supreme Court today DENIED the petition for

leave to appeal in the above entitled cause.

The mandate of this Court will issue to the Appellate

Court on February 20, 2001.

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