Opinion
No. 2-16-0426
11-16-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FERNANDO MONROY-JAIMES, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Du Page County.
No. 13-CF-1912
Honorable John J. Kinsella, Judge, Presiding.
JUSTICE SCHOSTOK delivered the judgment of the court.
Justices Zenoff and Birkett concurred in the judgment.
ORDER
¶ 1 Held: The trial court properly denied the defendant's motion to quash and suppress because the defendant's arrest was supported by probable cause.
¶ 2 The defendant, Fernando Monroy-Jaimes, appeals from an order of the circuit court of Du Page County denying his motion to quash and suppress. The defendant contends that the police did not have probable cause to arrest him and that evidence seized from his vehicle and statements made to police following his improper arrest should have been suppressed. Because the defendant's arrest was supported by probable cause, we affirm.
¶ 3 BACKGROUND
¶ 4 The defendant was indicted on one count of unlawful possession with intent to deliver 15 grams or more but less than 100 grams of cocaine (720 ILCS 570/401(a)(2)(A) (West 2012)). The defendant filed a motion to quash his arrest and suppress physical evidence and statements obtained following his arrest.
¶ 5 The following evidence was established at the hearing on the motion to suppress. Douglas Sanborn testified that he was a police officer with the Bensenville police department assigned to the Du Page Metropolitan Enforcement Group (DuMEG) working in undercover narcotics investigations. As part of his investigations, he had participated in and witnessed hundreds of drug transactions. In about 50 of those investigations, he utilized information provided by an individual that was in police custody.
¶ 6 On September 16, 2013, Officer Sanborn was working with an individual that was in custody for having possessed drugs with the intent to deliver. This confidential informant identified a person named "Chilango," who was later identified as the defendant, as someone who could provide cocaine. At about 4 p.m., at Officer Sanborn's direction, the informant placed a phone call to Chilango in Officer Sanborn's presence. Officer Sanborn was able to hear both sides of the conversation. Although the conversation was in Spanish, Officer Sanborn testified that he spoke fluent Spanish. The informant asked Chilango for five ounces of cocaine. Chilango stated that he could only provide two ounces right away or five ounces later. A short time later, the informant called Chilango again and stated that he could wait to get five ounces. They also discussed meeting at a BP Gas Station at 149 East Ogden Avenue in Hinsdale to conduct the drug sale. Chilango stated that he would call when he had the cocaine.
¶ 7 Officer Sanborn testified that he then met with other officers involved in the investigation to go over the phone conversation and make surveillance plans. Later, Officer Sanborn directed the informant to call Chilango again. Officer Sanborn again heard both sides of the
conversation. Chilango told the informant that he was waiting to get the cocaine but that they could meet at the gas station in about an hour. About a half-hour later, Chilango called the informant's phone and Officer Sanborn overheard him say that he was on the way to the gas station. At about 7 p.m., the informant received another call from Chilango asking for directions to the gas station. Chilango called again for more directions a few minutes later.
¶ 8 Shortly after 7 p.m., the informant and Officer Sanborn were parked with a view of the gas station. The informant told Officer Sanborn that he saw Chilango arriving at the gas station in a Toyota Rav 4. Officer Sanborn observed the defendant pull into the gas station and park at a gas pump. Officer Sanborn identified the defendant in court as the person he saw in the vehicle at the gas station. The defendant had not committed any traffic violations when he pulled into the gas station. Officer Sanborn believed that the defendant was bringing cocaine to the gas station. After parking, the defendant exited his vehicle and went into the gas station. The informant received another call from Chilango at about 7:10 p.m. Chilango stated that he was at the gas station. At that point, Officer Sanborn alerted surveillance officers, who went into the station and placed the defendant in custody. Officer Sanborn then had the informant call Chilango's phone number and one of the surveillance officers answered the defendant's phone. The defendant was transported to the police station. At the police station, Officer Sanborn overheard the defendant talking and recognized the defendant's voice as the voice of Chilango.
¶ 9 Andrew Anselm testified that he was a sergeant with the Illinois State police and was on assignment to the North Central Narcotics Task Force. Before that, he was assigned to DuMEG. In that capacity, on September 16, 2013, Officer Sanborn had informed him about the phone conversations between the informant and Chilango. Thereafter, Sergeant Anselm and other surveillance officers went to the BP gas station at 149 East Ogden Avenue in Hinsdale and
parked by the gas station building. Sergeant Anselm was in communication with Officer Sanborn during this time.
¶ 10 At about 7 p.m., Sergeant Anselm saw a silver Toyota Rav 4 pull into the gas station and park. Officer Sanborn told Sergeant Anselm that the informant had identified the driver of the Rav 4 as Chilango. Sergeant Anselm saw the defendant park his car at a pump, and walk into the gas station. Sergeant Anselm then gave the signal, and he and other surveillance officers placed the defendant in custody. The defendant was searched at the time of his arrest but the officers did not find any contraband on the defendant's person. Officer Sanborn had the informant call Chilango's phone. After that, the defendant's cell phone began to ring. Sergeant Anselm answered the phone and spoke to Officer Sanborn. About 30 seconds later, Sergeant Anselm walked to the defendant's vehicle, where he saw a clear plastic bag containing a white chalky substance on the front passenger seat. Based on his training and experience, Sergeant Anselm knew it was cocaine so he opened the door and confiscated it.
¶ 11 Following argument, the trial court found that the defendant was placed under arrest inside the gas station. The trial court further found that there was probable cause to arrest the defendant because the police knew of the specific agreement between the informant and the defendant for the delivery of five ounces of cocaine at a specific location. Thus, when the defendant arrived at the prearranged location, there was probable cause to arrest him. After his arrest, Sergeant Anselm found the cocaine in plain view in the defendant's vehicle which was parked 20 to 30 feet away. The trial court acknowledged that a mere arrest does not authorize a search of any property at any location. However, the vehicle was close by and the cocaine was in plain view. The trial court found that this was no different than if the defendant had been arrested standing outside his vehicle. The trial court found that the cocaine was lawfully seized
from the defendant's vehicle. The trial court thus denied the defendant's motion to quash arrest and suppress evidence. The trial court also denied the defendant's motion to reconsider.
¶ 12 The case proceeded to a bench trial. At trial, Officer Sanborn and Sergeant Anselm testified consistently with their testimony at the suppression hearing. The parties stipulated that the substance retrieved from the defendant's vehicle tested positive for 67.191 grams of cocaine. Vicente Roman testified that he was the detective who interviewed the defendant at the police station following his arrest. The defendant told Detective Roman that he agreed to sell the cocaine to the informant because he was unemployed and needed to make some money. In a written statement, the defendant indicated that he "[w]as grabbed trying to give reduced drugs for money but [he] was unable to do it because the police recognized [him] and took [him] into the police station *** [he] was going to profit $750." Following the bench trial, the trial court found the defendant guilty of possession with intent to deliver a controlled substance. The trial court denied the defendant's motion for a new trial or for judgment notwithstanding the verdict. The trial court sentenced the defendant to six years' imprisonment. The defendant filed a timely notice of appeal.
¶ 13 ANALYSIS
¶ 14 On appeal, the defendant argues that the trial court erred in denying his motion to quash and suppress. The defendant argues that the police did not have probable cause to arrest him. The defendant further argues that, because his arrest was not valid, the evidence seized from his vehicle should have been suppressed because it was not justified as a search incident to arrest and the subsequent statements to police should have been suppressed as the fruit of the illegal arrest.
¶ 15 In reviewing a ruling on a motion to suppress evidence, we apply a two-part standard. People v. Hopkins, 235 Ill. 2d 453, 471 (2009). Although we accord great deference to the
factual findings, and will reverse only if they are against the manifest weight of the evidence, we review de novo the ultimate ruling on a motion to suppress. Id. A warrantless arrest is valid only if supported by probable cause. Id. at 472. Probable cause to arrest exists when the facts known to the police when they make the arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime. Id. The existence of probable cause depends upon the totality of the circumstances at the time of the arrest. Id.
¶ 16 In addressing probable cause, we deal with probabilities. Id. They are the factual and practical considerations of everyday life on which reasonable and prudent people, not legal technicians, act. Id. Accordingly, whether probable cause exists depends upon commonsense considerations, and such a determination concerns the probability of criminal activity, rather than proof beyond a reasonable doubt. Id. Indeed, probable cause does not require even a showing that the belief that the suspect had committed a crime was more likely true than false. Id.
¶ 17 If the facts supplied in an informant's tip are essential to a finding of probable cause, the tip must be reliable. People v. Johnson, 368 Ill. App. 3d 1073, 1081 (2006). An indication of the reliability of the information is when the facts learned through police investigation independently verify a substantial part of the informant's tip. Id. (citing People v. James, 118 Ill. 2d 214, 225 (1987)). The reliability of the informant is another fact to be considered. Johnson, 368 Ill. App. 3d at 1081 (citing People v. Adams, 131 Ill. 2d 387, 397 (1989)). The reliability of the informant is enhanced if he is known to the police. See United States v. Davis, 617 F. 2d 677, 693 (D.C. Cir. 1979) (a person who knows the police are in a position to charge him with a crime will not lightly undertake to direct "the police down blind alleys"). However, if an informant is offered leniency in exchange for information that incriminates others, such information is clearly suspect. James, 118 Ill. 2d at 224. The determination of whether an
informant has provided reliable information depends on the totality of the circumstances. People v. Tisler, 103 Ill. 2d 226, 245-46 (1984) (citing Illinois v. Gates, 462 U.S. 213, 239 (1983)).
¶ 18 In the present case, the informant's reliability was established under the totality of the circumstances. The informant provided the tip in person while in police custody. This enhanced the reliability of the information provided. Davis, 617 F. 2d at 693. A confidential informant is deemed more reliable than an anonymous informant. People v. Bryant, 39 Ill. App. 3d 500, 518 (2009); see also Sanders, 2013 IL App (1st) 102696, ¶ 19 (recognizing the "difference between an anonymous tip and one from a known informant whose reputation can be ascertained and who can be held accountable if a tip turns out to be fabricated"). Further, there was no evidence that the informant was given any specific inducement or promise in exchange for providing the information about the defendant and cooperating with the police.
¶ 19 In addition, the informant's reliability was enhanced by the fact that much of the information relied upon to establish probable cause was based on Officer Sanborn's personal observations during the phone calls between the informant and defendant. People v. Blake, 266 Ill. App. 3d 232, 242 (1994) (noting that an informant's reliability was enhanced because "much of the information relied on to establish probable cause was based on [the police officer's] personal observations rather than mere anecdotal information supplied by the informant"). Officer Sanborn listened in on all of the phone calls between the informant and the defendant. Officer Sanborn thus heard the request for a purchase of cocaine and the defendant's statement that he could provide two ounces immediately or five ounces later. When the informant indicated he could wait for the five ounces, Officer Sanborn overheard the informant and the defendant set a location for the drug transaction. Within the expected period of time, the defendant indicated he was on his way and was identified at the pre-arranged location by the informant. Shortly after the informant identified the defendant to Officer Sanborn as arriving at
the gas station, the defendant called the informant to tell him he had just arrived at the gas station. Accordingly, much of the information provided by the informant was verified before the defendant's arrest. Under the totality of the circumstances, the police were aware of facts "sufficient to lead a reasonably cautious person to believe that the [defendant] ha[d] committed a crime." Hopkins, 235 Ill. 2d at 472.
¶ 20 The defendant argues that the informant was unreliable because there was no evidence that he had provided reliable information in the past. However, the lack of any showing of previous reliable information from the informant does not change our conclusion. Prior reliable tips are simply one consideration in the totality of the circumstances as to whether the informant was reliable.
¶ 21 The defendant cites People v. Chavez, 327 Ill. App. 3d 18 (2001), and People v. Halmon, 225 Ill. App. 3d 259, 274 (1992), for the proposition that a lack of history in providing reliable information renders an informant unreliable. These cases are distinguishable from the present case. Although in those cases the informants' track record of providing information was critical to establishing the informant's reliability or lack of it, those cases did not involve an arranged purchase of narcotics of which the police had first-hand knowledge. Chavez, 327 Ill. App. 3d at 23 (confidential informant provided specific information as to future drug transaction and surveillance officers observed the predicted drug transaction; informant held reliable based on track record of providing reliable information); Halmon, 225 Ill. App. 3d at 274, 276 (anonymous informant unreliable because there was no evidence as to informant's background, criminal history, or whether he supplied reliable information in the past; and police had no corroborating information to render the tip reliable). In this case, unlike Chavez, Officer Sanborn listened as the informant and defendant set up a specific drug transaction, and, unlike Halmon, the informant was not anonymous and much of the information was corroborated prior
to the defendant's arrest. As there were other factors supporting the informant's reliability, a previous track record of supplying reliable information was not critical.
¶ 22 The defendant also argues that the informant was unreliable because he did not know the defendant's real name. In support, the defendant cites People v. Crespo, 207 Ill. App. 3d 947, 949 (1991) (upholding trial court's grant of a motion to suppress, noting that the informant knew the subject only as "John"). However, the defendant's reliance on Crespo is unpersuasive. In that case, the informant was not found unreliable because he did not know the perpetrator's last name. Rather, it was because the informant's reliability was weakened by the fact that he was supplying information in exchange for lessened punishment and because he was uncertain of whether the events observed by the police were actually the drug transaction that he was predicting or something different. In this case, there was no such uncertainty. The informant and the defendant reached a very specific agreement for the delivery of the five ounces of cocaine and the defendant arrived at the pre-arranged location. Further, there was no evidence that the informant was receiving any lessened punishment.
¶ 23 The defendant also argues that the police lacked probable cause because, in the later phone calls, the defendant did not specifically state that he would have cocaine with him when he arrived at the gas station. However, whether there was probable cause is not based on each of the phone calls viewed in isolation. Rather, it is based on the totality of the circumstances. Here, as noted, the informant and the defendant reached a very specific agreement for the delivery of five ounces of cocaine. In dealing with probable cause, "we deal with probabilities" not certainties. Hopkins, 235 Ill. 2d at 472. Here, based on the circumstances, there was a fair probability that the defendant had brought cocaine to the gas station. This is all that was necessary to establish probable cause. Id.
¶ 24 Because we have concluded that the defendant's arrest was supported by probable cause, we need not reach the defendant's additional contentions on appeal which were predicated on his argument that his arrest was improper.
¶ 25 CONCLUSION
¶ 26 For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed. As part of our judgment, we grant the State's request that the defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178 (1978).
¶ 27 Affirmed.