# Petition for Writ of Certiorari — Garcia v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 903

## Text

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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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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Court of Appeals Order - 6/26/00

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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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1762%3A1. Public record. Not legal advice.