People v. Arce

                                             THIRD DIVISION
                                             June 30, 1997










No. 1-96-0128

THE PEOPLE OF THE STATE OF ILLINOIS,

          Plaintiff-Appellee,

     v.

JIMMY ARCE,

          Defendant-Appellant.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County

94 CR 9302

Honorable
Lon Williams Shultz,
Judge Presiding.


     JUSTICE CAHILL delivered the opinion of the court:
     After a jury trial defendant, Jimmy Arce, was convicted of
possession of a controlled substance with intent to deliver and
was sentenced to 20 years' imprisonment.  Defendant appeals. 
Among other issues, we review the denial of a Franks hearing
where defendant and the State relied upon affidavits from the
same person, and the refusal of the trial court to inquire of
prospective jurors if they would tend to believe the testimony of
a police officer over that of other witnesses.  We affirm.
     At trial, Detective Graf testified that on March 7, 1994, a
search warrant was issued for a residence in Chicago and the
person of Jimmy Arce.  Graf executed the search warrant along
with a number of other officers.  Graf knocked at the front door
and announced his office and purpose.  There was no response. 
The officers waited a few seconds and then made a forcible entry,
using a sledge hammer on the front door lock.
     When the officers found no one in the home they began their
search.  On a closet shelf in the front hall, Detective Graf
found one large plastic bag and four smaller bags containing
white powder, along with a battery-powered scale and
correspondence addressed to defendant.  He also saw men's and
women's coats in the closet.  After the search was completed,
Graf left a copy of the search warrant on the kitchen table along
with a note explaining what happened.   
     Graf testified that defendant telephoned him at about 6 p.m.
later the same day.  Defendant told Graf he would like to
surrender the following day, but defendant was arrested at his
home at approximately 9 p.m. that night. 
     Evidence at trial established that a fingerprint on the
correspondence matched a fingerprint of someone other than
defendant.  Defendant's fingerprint matched a fingerprint taken
from the scale.  No cocaine residue was found on the scale.  The
condition of the plastic bags did not permit fingerprint
analysis.  
     Tests established that the white powder in the bags was
cocaine.  The total weight of the cocaine was more than 821
grams.  The substance was 87.4% pure.
     Chicago police detective Karen Morrisette qualified to
testify as an expert in the buying and selling of controlled
substances.  She testified that, on the street, a narcotics user
would buy between a quarter of a gram to a gram of powder cocaine
or a tenth of a gram in rock form.  A quarter gram would sell for
$25.  The purity level was usually 80%.  She estimated that 270
grams of cocaine could be worth as much as $280,000.  She
testified that the electronic scale entered as an exhibit is the
kind typically used by drug sellers.
     The jury found defendant guilty of possession of a
controlled substance with intent to deliver.  He was later
sentenced to 20 years in prison.  Defendant's motion for a new
trial was denied.
     Defendant first argues that he was not proven guilty beyond
a reasonable doubt.  He contends the evidence at trial failed to
establish that he had power or control over the drugs.  Defendant
stresses that: he was not present at the time of the search; his
fingerprints were not on the bags of cocaine and correspondence
found in the front closet; only a fingerprint on the scale
matched his fingerprint; and no cocaine residue was found on the
scale.  
     To prove the crime of unlawful possession, the State must
establish that the defendant knew of the presence of narcotics
and that the narcotics were in his immediate and exclusive
control.  People v. Embry, 20 Ill. 2d 331, 334, 169 N.E.2d 767
(1960).  Knowledge can be established by evidence of acts,
declarations or conduct from which an inference may be fairly
made that a defendant knew of the existence of the narcotics at
the place where they were found.  Embry, 20 Ill. 2d  at 334.  The
trier of fact must decide whether the accused had such knowledge. 
Embry, 20 Ill. 2d  at 334.  Physical possession need not be
directly proven.  A conviction can be sustained when constructive
possession can be inferred from the facts.  People v. Stamps, 108
Ill. App. 3d 280, 292-93, 438 N.E.2d 1282 (1982).  Constructive
possession is defined as "'that which exists without actual
personal present dominion ***, but with an intent and capability
to maintain control and dominion.'"  Stamps, 108 Ill. App. 3d at
292, quoting People v. Fox, 24 Ill. 2d 581, 585, 182 N.E.2d 692
(1962).
     Findings of the trier of fact will not be disturbed on
review unless the evidence is so palpably contrary to the verdict
or so unreasonable, improbable, or unsatisfactory as to create a
reasonable doubt of guilt.  Stamps, 108 Ill. App. 3d at 292-93.
Here, mail addressed to defendant was found in a closet of the
house.  His fingerprint was found on the scale, next to the
cocaine.  The evidence supports a jury finding of constructive
possession and control of the cocaine.
     Defendant next argues that the denial of his motions for a
Franks hearing and to quash the search warrant was error.  Franks
v. Delaware, 438 U.S. 154, 155-56, 57 L. Ed. 667, 672, 98 S. Ct. 2674, 2676 (1978).  
     According to the search warrant complaint, a confidential
informant told Graf that on March 7, 1994, the informant went to
2955 N. Kolmar, known to the informant to be the residence of
defendant, and at that time, defendant showed him a loaded gun in
the front closet.  The informant and defendant then walked to a
restaurant with the gun in defendant's possession.  Defendant
left the informant at the restaurant and said he was going home. 
Graf stated that he has known the informant for three years.  The
last six times Graf received information about a firearm from the
informant he recovered a firearm.
     Defendant filed a motion to quash the search warrant and
requested a Franks hearing before trial.  Probable cause must be
established before a search warrant may be issued.  U.S. Const.,
amend. IV; Ill. Const. 1970, art. I, 6.  Whether probable cause
exists for the issuance of a search warrant is a question to be
decided by the judge before whom the complaint for a search
warrant is made.  People v. Velez, 204 Ill. App. 3d 318, 329, 562 N.E.2d 247 (1990).  Probable cause means that the affiant relied
on information that was trustworthy in and of itself and this
information led him to believe that the law was being broken and
that evidence of it was in the premises or on the person to be
searched.  People v. Francisco, 44 Ill. 2d 373, 376, 255 N.E.2d 413 (1970).  When a defendant makes a substantial preliminary
showing that a false statement knowingly and intentionally, or
with reckless disregard for the truth, was included in the
warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the fourth amendment
requires that a hearing be held at the defendant's request. 
Franks, 438 U.S.  at 155-56, 57 L. Ed.  at 672, 98 S. Ct.  at 2676.
     As part of his preliminary showing, defendant established
that he was on an electrical home monitoring system at the time
of the arrest.  Defendant and the State each submitted an
affidavit from the president of a private firm that operates the
monitoring system in conjunction with the Illinois Department of
Corrections.  The president stated, in the affidavit submitted by
defendant, that on March 6: defendant's alarm did not sound; the
radio frequency was not lost; defendant was at home; and the unit
was functioning properly.  The president's affidavit submitted by
the State said that he reviewed defendant's records from March 6
and 7 and that the maximum distance defendant could have
travelled from his residence is 100 feet.  But the president
further stated that if defendant had exceeded this distance he
could have done so for up to five minutes without detection.
     Defendant's counsel argued at the hearing that the
restaurant was approximately two blocks from defendant's home and
that defendant could not jog to and from the restaurant within
five minutes.
     The court held an in camera inspection of Graf's
confidential informant file.  The court then stated that it
believed the informant existed, that the officer had known him
31/2 years, and the informant had been reliable.  The court denied
defendant's motion for a Franks hearing.  We review such a denial
under an abuse of discretion standard.  People v. Pearson, 271
Ill. App. 3d 640, 643, 648 N.E.2d 1024 (1995).
     A substantial showing requires something more than mere
denials on the one hand and less than proof by a preponderance of
the evidence on the other.  Pearson, 271 Ill. App. 3d at 643. 
"The determination in a given case must be based upon a careful
balancing of the statements in the warrant affidavit versus those
in support of the defendant's challenge to the warrant."  People
v. Lucente, 116 Ill. 2d 133, 152, 506 N.E.2d 1269 (1987).
Defendant's preliminary showing did not support that the officer
included intentionally false statements in the warrant complaint. 
The trial court found that the officer reasonably relied on the
information of the confidential informant after reviewing the
officer's confidential informant file.  We note that the argument
of counsel about the distance defendant could travel in five
minutes was nothing more than an opinion.  The denial of a Franks
hearing was not an abuse of discretion.         
     Defendant next argues that the State made improper remarks
during closing argument, denying him the right to a fair and
impartial trial and the right to due process and equal
protection.  Defendant contends that the State's repeated
references to defendant's door being locked was an improper
inference of exclusive dominion and control of the drugs.     
     A prosecutor may draw reasonable inferences from the
evidence presented and state such inferences to the jurors. 
People v. Morrison, 137 Ill. App. 3d 171, 184, 484 N.E.2d 329
(1985).  Evidence of a locked door, established by the manner of
entry, coupled with mail addressed to defendant and his
fingerprint on the scale, could warrant reasonable inferences
tending to show that defendant had exclusive dominion and control
of the house and the drugs.  The weight to be given to such
inferences is for the trier of fact.  People v. Collins, 106 Ill. 2d 237, 277-78, 478 N.E.2d 267 (1985).
     Defendant next argues that the court erred in denying his
request for a voir dire question.  Defendant asked that potential
jurors be examined as to whether they were more likely to believe
a police officer over other witnesses.  The court refused to ask
the question.
     Voir dire examination allows counsel to ascertain whether
the prospective jurors' minds are free from prejudice.  People v.
Witted, 79 Ill. App. 3d 156, 164, 398 N.E.2d 68 (1979).  Limiting
the scope of voir dire may constitute reversible error when doing
so effectively denies a party fair opportunity to explore
potential bias or prejudice.  People v. Newell, 196 Ill. App. 3d
373, 378, 553 N.E.2d 722 (1990).  But the scope of voir dire is
left to the sound discretion of the trial judge.  Newell 196 Ill.
App. 3d at 378.
     Defendant argues that People v. Oliver, 265 Ill. App. 3d
543, 637 N.E.2d 1173 (1994), supports his argument.  We disagree. 
In Oliver, the defendant was charged with criminal sexual assault
and armed robbery.  Oliver, 265 Ill. App. 3d at 544.  The judge
asked members of the venire to stand if they or someone in their
family had ever been the victim of armed robbery, rape, sexual
assault or homicide.  He then asked those who stood if they could
be impartial.  Oliver, 265 Ill. App. 3d at 549-50.  Those
standing who became part of the jury said they could be
impartial.  The defendant claimed that he was prejudiced because
he was not allowed to inquire of each potential juror whether the
juror had been a victim of or involved in a specific crime.  We
reversed, stating that the trial court abused its discretion in
failing to ask the potential jurors individually if they were
victims of the specific crimes charged in the case before the
court.  Oliver, 265 Ill. App. 3d at 550-51.  Nothing analogous
happened here.
     While we agree that refusing to ask the question defendant
submitted in another case might be an abuse of discretion, we do
not find so here.  
     While a question to detect whether a juror would ascribe
heightened credibility to a police officer is quite common at
voir dire, defendant cites to no case that holds it must be asked
as a matter of law.  It remains within the discretion of the
trial court.  Newell, 196 Ill. App. 3d at 378.  Suitable inquiry
is permissible to ascertain whether a juror has a bias, prejudice
or opinion that would impair his ability to make a fair
determination of the issues before the court.  People v. Lobb, 17 Ill. 2d 287, 300, 161 N.E.2d 325 (1959).  
     In this case the credibility of police testimony was not an
issue.  The facts testified to by Detective Graf about execution
of the warrant, entry to the house, and what was found inside
were not at issue.  The analysis of the police laboratory was
stipulated testimony.  The expert testimony of Officer Morrisette
was uncontested.  Had defendant made an offer of proof at voir
dire that he intended to attack the credibility of the police
officers about evidence essential to the State's case, we might
well have found an abuse of discretion in the failure of the
court to ask the question.  On this record we find none.  The
sole issue for the jury here was not the credibility of the
officers, but whether the uncontested facts were sufficient to
establish constructive possession.
     Finally, defendant contends that the court erred when it
admitted hearsay evidence that the search warrant was executed
for defendant's residence and for the defendant.  Defendant
relies on People v. Garcia, 109 Ill. App. 3d 142, 152, 440 N.E.2d 269 (1982), for the proposition that the reference to the search
warrant was an improper use of hearsay.  The facts in Garcia are
far afield.
     In Garcia, the court found the State's repeated questions to
the witnesses and repeated references in opening and closing
arguments to information from a confidential informant contained
in a search warrant were prejudicial.  The Garcia court concluded
that repeated references could have led the jury to believe that
the defendant was responsible for bringing cocaine to an
apartment and that the defendant was the occupant of the
apartment.  Then, in an apparent attempt to lend credibility to
the hearsay information of the informer, the prosecutor
demonstrated through testimony that was irrelevant to an issue
properly before the jury how the police and State's Attorney's
office "authenticate" a warrant.  Garcia, 109 Ill. App. 3d at
152-54.  In effect, the facts alleged in the warrant were offered
at trial to lend credence to the facts the State was attempting
to establish at trial.  That did not happen here.
     A police officer may recount the steps taken in an
investigation and may describe the events leading up to a
defendant's arrest when such testimony is necessary and important
to fully explain the State's case to the trier of fact.  People
v. Simms, 143 Ill. 2d 154, 174, 572 N.E.2d 947 (1991).
     Unlike Garcia, neither the police officer in his testimony
nor the assistant State's Attorney in examination or argument 
made reference to the confidential informant's hearsay
allegations.  When asked why Graf went to defendant's address
Graf testified that he was executing a search warrant for
defendant's residence and defendant.  This reference to the
search warrant is permissible under Simms.    
     As part of our judgment, we grant the State's request for
costs for defending this appeal and assess defendant $150 in
accordance with People v. Agnew, 105 Ill. 2d 275, 473 N.E.2d 1219
(1985), and People v. Nicholls, 71 Ill. 2d 166, 374 N.E.2d 194
(1978).
     Affirmed.
     COUSINS, P.J., concurs.


JUSTICE LEAVITT dissenting:

     I would reverse and remand this matter for the court's
failure to afford defendant his right to a Franks hearing.
     The defendant in his motion for a Franks hearing asserts the
complaint for search warrant submitted by Officer Graf contains
untrue statements which are deliberately misleading.  The
affidavit states in part:
     "The CI stated to me that in the evining (sic) hours of
     06Mar94, that he had gone to the address of 2955 N.
     Kolmar, Chicago, Cook County and that he was met at the
     front door to that single family residence by a subject
     known to him as Jimmy Arce.  The CI described Jimmy
     Arce asa M/WH 28 yoa, 5'11", 160 lbs., light
     complexion.  The CI stated that Jimmy Arce allowed the
     CI to enter the house and that Jimmy Arce opened the
     front closet door and showed the CI a 9mm semi-
     automatic pistol.  The CI stated that the subject Jimmy
     Arce took the magazine out of the pistol and showed the
     CI that it was loaded.  The CI stated to me that Jimmy
     Arce then placed the pistol into his waistband and at
     that time the CI and Jimmy Arce waked (sic) down the
     street to the Burger King restaurant at Kolmar and
     Diversey.  The CI stated that Jimmy Arce left him at
     the restaurant, saying that he was going back home."
     The defendant in his motion stated that the factual
allegations found in the complaint are untrue because (1) he
denies there was any confidential informant in his home on March
6, 1994; (2) he denies having a gun within his home on March 6,
1994, or displaying a weapon to anyone on that date--a matter
confirmed by the subsequent search which failed to produce a
weapon; and (3) he denies walking with the confidential informant
to the Burger King restaurant located at Kolmar and Diversey
(2800 North), two blocks away from his home.
     In his motion defendant stated that on March 6, 1994, he was
on early release from the Illinois Department of Corrections.  He
further stated he was on an electronic home monitoring unit on
that date.  He provided an affidavit from Michael Reeves, the
President of Comguard Corporation, which has a contract with the
Illinois Department of Corrections to provide monitoring of
inmates who have been granted early release.  In his affidavit,
Reeves states that the defendant was on a monitor on March 6,
1994, and that the unit was functioning properly on that date.
Finally, Reeves attests that there was no loss of radio frequency
for the inmate's monitor on March 6, 1994, confirming the
defendant was at his residence on that date.  The State also
obtained an affidavit from Reeves in which he allowed that should
the defendant travel more than 100 feet from his home he could
remain undetected for up to five minutes. 
     As the majority correctly states, a defendant is entitled to
a Franks hearing only where he is able to make a "substantial
preliminary showing" that the affiant, either knowingly and
intentionally or in reckless disregard of the truth, included a
false statement in the warrant affidavit, and that, absent the
false statement, no probable cause to issue the warrant otherwise
exists.  See People v. Lucente 116 Ill. 2d 133, 147, 506 N.E.2d 1269 (1987).  However, the supreme court has recognized that
special considerations apply when a defendant offers an alibi-
type defense in challenging a warrant based upon information
supplied by a confidential informant.  In such cases, the supreme
court has cautioned that the rule stated by the majority should
not be applied "so inflexibly as to make hearings unattainable." 
Lucente, 116 Ill. 2d  at 149.  Given the fact that Graf's
affidavit in support of a warrant in this case was based upon
information supplied by a confidential informant and the fact
that defendant offered corroborative evidence of what is
essentially an alibi, I believe the trial court abused its
discretion in denying defendant a full Franks hearing.  
     The supreme court in Lucente recognized the "inherent
dilemma" faced by a defendant seeking a Franks hearing when the
underlying warrant is based upon information supplied by a
confidential informant.  Lucente, 116 Ill. 2d  at 149.  As the
Lucente court noted:
     "While it is true that the defendant's ultimate burden
     is to show by a preponderance of the evidence that the
     affiant-officer made deliberate or reckless false
     statements, Franks does not require that the defendant
     disprove every other possibility at the preliminary
     stage.  If an informant's identity--or very
     existence--is unknown, a defendant obviously lacks the
     very information necessary to determine the source of
     the false statements.  If such a preliminary showing
     were demanded, no hearing could ever result in cases in
     which all the information to establish probable cause
     came from an unnamed informant.  One need not be overly
     cynical to realize that such a rule would enable the
     police to insulate perjury from discovery by the simple
     expedient of a fabricated informant, and thereafter
     'remain confident that the ploy was worthwhile'
     [citation].  ***  [Such an inflexible application of
     Franks] would permit the very evisceration of the
     probable-cause requirement which Franks seeks to
     prevent."  Lucente, 116 Ill. 2d  at 149-50.
Accordingly, the Lucente court rejected the assertion that proof
of an alibi alone will always be insufficient to justify a Franks
hearing.  Lucente, 116 Ill. 2d  at 148.
     Rather, what is important in these cases is the "quantity
and quality" of corroboration accompanying the offer of an alibi. 
See Lucente, 116 Ill. 2d  at 148.  Thus, a lone affidavit from the
defendant himself may, in certain circumstances, justify a Franks
hearing.  See People v. Allen, 158 Ill. App. 3d 602, 606-07, 511 N.E.2d 824 (1987) (Bilandic, J.) (remanding for Franks hearing
where the defendant was not the person named in the warrant and
where the defendant submitted an affidavit stating she had been
home alone on the night in question).  The quality of the
corroboration is equally as important.  Affidavits from persons
not biased in the defendant's favor carry greater weight than
those with obvious bias.  See Lucente, 116 Ill. 2d  at 154; People
v. Phillips, 265 Ill. App. 3d 438, 445, 637 N.E.2d 715 (1994)
(affirming trial court's refusal to grant a Franks hearing where
only affidavits in support of defendant's alibi were from
defendant, his mother, and his friend); People v. Tovar, 169 Ill.
App. 3d 986, 992, 523 N.E.2d 1178 (1988) (affirming trial court's
refusal to grant a Franks hearing where only affidavits in
support of defendant's alibi were from defendant and his wife). 
The affidavits must be sufficiently detailed so as to subject the
affiants to the penalties of perjury if untrue.  See Lucente, 116 Ill. 2d  at 154.  Moreover, affidavits containing mere denials
(the "I didn't do it" type) are less persuasive than those which
affirmatively establish the impossibility of the informant's
version of events.  See Lucente, 116 Ill. 2d  at 154; People v.
Pearson, 271 Ill. App. 3d 640, 644, 648 N.E.2d 1024 (1995)
(remanding for a Franks hearing where defendant alleged he was
not on the premises at time of transaction with informant and
defendant had otherwise "airtight" alibi); Phillips, 265 Ill.
App. 3d at 445 (affirming trial court's refusal to grant a Franks
hearing where one of defendant's alibi affiants swore only that
he was asleep at the time and location of the alleged
transaction, as transaction could have occurred while affiant was
asleep); Tovar, 169 Ill. App. 3d at 992 (affirming trial court's
refusal to grant a Franks hearing where defendant admitted being
home at the time of the informant's alleged transaction and
affidavit did not establish impossibility of the informant having
access to the apartment).  
     In the present case, defendant has essentially alleged an
alibi, albeit an electronic one.  Contrary to the majority's
assertion that defendant offered "nothing more than an opinion"
regarding the defendant's alleged trip to Burger King with the
informant, the record shows specific facts which suggest the
scenario recounted in Graf's affidavit was implausible.  Graf
stated that the confidential informant went to the defendant's
residence at 2955 North Kolmar and thereafter walked with him to
the Burger King at Diversey and Kolmar.  Defendant's assertion in
his motion that this is a distance of approximately two blocks is
unchallenged.  Reeves' affidavit, which provides that defendant
could have traveled 100 feet and then remained outside that range
for up to five minutes without causing a loss of signal, allows
little time to walk the four blocks to and from the Burger King. 
Time and distance are subject to objective measure.
     Reeves is not shown to be biased in favor of defendant in
this case.  Moreover, defendant has certainly supported his
"alibi" with more than mere denials--Reeves' affidavit strongly
suggests, given the home monitoring technology involved, the
alleged trip was not physically possible.  The evidentiary burden
on a defendant at such a preliminary stage is considerably less
than the burden he will face should a full hearing eventually be
granted.  While a defendant's mere denials will not suffice, a
defendant need not present proof of the affiant's perjury by a
preponderance of the evidence at such an early stage.  Pearson,
271 Ill. App. 3d at 643.  It is uncontested here that, absent the
allegedly false statements included in the warrant affidavit, no
probable cause to issue the warrant existed.  The trial judge's
in camera confirmation that an informant did, in fact, exist does
not address the issue regarding the falsity of information
claimed to be found in the complaint for the search warrant. 
Defendant made a substantial preliminary showing of an alibi
corroborated by unbiased, sworn testimony, as required for a
Franks hearing.
     For the foregoing reasons, I would remand this matter for a
Franks hearing.