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SIXTH DIVISION

December 20, 2002

JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Defendants Francisca Calderon, Jose Jimenez, and Sergio Perez were charged with one countof possession of cannabis with intent to deliver and two counts of possession of a controlledsubstance with intent to deliver after drugs were found in a residence which they were observedentering and exiting. Each defendant filed a motion to quash arrest and suppress evidence, whichthe trial court granted. In support of its order granting those motions, the trial court found thatalthough the police had sufficient information to initially detain defendants and conduct aninvestigative stop, their continued detention of defendants constituted an arrest without probablecause. In addition, the trial court found that consent to search forms signed by Jimenez and Calderonwere invalid and, therefore, did not authorize the police to enter and search the residence in question. The State appeals, contending that the drugs recovered during the search of the residence should nothave been suppressed because defendants' detention constituted a lawful investigative stop pursuantto Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and Jimenez and Calderongave valid consent to search the residence where the drugs were recovered.

BACKGROUND

At the hearing on the motion to suppress, Perez testified he lived with Calderon, hisgirlfriend, at 6234 South Francisco Avenue in Chicago. On August 26, 2000, Perez drove Jimenezand Calderon to the Francisco Avenue residence in his car, a 1991 Cadillac. They arrived aroundnoon, parked in the rear carport, and went inside the house. A few minutes later they came backoutside, got into the car, and drove away.

Approximately two blocks from the house an unmarked police car pulled over Perez's car. Three police officers ran up to Perez's car with their guns drawn and yelled at defendants, orderingthem to get out of the car and spread their hands on its trunk. The officers searched defendants butdid not find any drugs or guns on them. The officers then handcuffed defendants, placed them in thebackseat of an unmarked police car, and searched Perez's car for approximately 10 minutes. Theofficers did not find any drugs or guns in the car.

Perez stated that approximately 20 minutes after searching the car, the officers drovedefendants back to the Francisco Avenue residence. The officers took Perez and Calderon out of thepolice car and separately questioned Calderon. After questioning Calderon, the officers opened theback door of the Francisco Avenue residence with a key removed from Perez's belt by one of theofficers. Perez testified that the officers took defendants into the dining room and had them sithandcuffed while they searched the house. The officers did not have a search warrant and, accordingto Perez, did not ask defendants for permission to enter or search the home before beginning theirsearch. Perez estimated that 10 to 12 officers were in the house at the time of the search. A fewminutes after the search began, one of the officers came up from the basement and indicated drugshad been found.

Following the search, an officer approached Perez and asked him to sign a consent to searchform. Perez refused despite the officer's insistence that signing it would be best for him. An officerthen approached Jimenez, asked him in Spanish to sign the consent form, and repeatedly told himthat if he signed the consent form, he would be allowed to go home. When Perez told Jimenez inSpanish not to sign anything, the officer yelled at Perez, telling him to shut up and mind his ownbusiness. Jimenez eventually signed the consent form. An officer then approached Calderon andasked her to sign the consent to search form. Perez stated that while asking her to sign the form, theofficer was "scaring her[,] yelling at her[,] and trying to intimidate her." She, too, signed the consentform, and defendants were subsequently formally arrested and taken to the police station.

On cross-examination, Perez admitted he knew the drugs were in the basement of the houseon Francisco Avenue, and that he leased that house using a name which was not his own. Inaddition, Perez admitted that although he had purchased the Cadillac he was driving about a monthprior to the stop by the police, he never changed the title to reflect he was the new owner.

Sergeant Joseph Salemme of the Chicago Police Department testified that he spoke with aconfidential informant by telephone around 4 p.m. on August 25, 2000, the day before defendantswere stopped by the police. The informant told him that a large amount of drug-related money wasbeing stored in a second-floor apartment at 1633 South Austin Avenue in Cicero, that marijuana andcocaine were being stored in the basement of 6234 South Francisco Avenue in Chicago, and thatboth these addresses were related to the same organization. The informant described a white maleHispanic in his forties, about 5 feet 8 inches tall, 180 pounds, with a scar under his left eye. Inaddition, he stated that the home on Francisco Avenue had two 25-year-old Hispanic occupants, onemale and one female. The male was 5 feet 10 inches tall, 200 pounds, and significantly tattooed; thefemale had long, dark hair. Based upon this information, which was received at around 4 p.m. onAugust 25, 2000, and was less than 48 hours old, he ordered surveillance of both addresses. TheFrancisco Avenue residence was under surveillance approximately 20 hours before defendants werestopped on August 26, 2000. The record reflects no attempt was made to obtain a search warrantfor the Francisco Avenue residence.

Shortly after talking with the informant, Sergeant Salemme went to the apartment at 1633South Austin Avenue, Cicero, to participate in the surveillance. That evening Sergeant Salemmeand Detective Maher attempted to gain access to the Cicero apartment by ringing the front doorbell. When no one answered, Detective Maher went to the back of the building. He observed a whiteHispanic female with long, dark hair looking out the rear window of the second-floor apartment. He observed her run down into the basement laundry room with a gray and black shoe box, place thebox under a blanket, and run back upstairs.

Sergeant Salemme and Detective Maher knocked on the door of the first-floor apartment at1633 South Austin Avenue and spoke with Maria Hermosillo, who answered the door. They askedher if she would allow them to search the common area of the basement laundry room. After sheagreed and signed a consent to search form, the two officers entered the laundry room and recoveredthe shoe box Detective Maher had previously observed. It contained approximately $129,480 inUnited States currency. The white Hispanic female observed by Detective Maher placing the shoebox in the basement was not defendant Calderon.

The following morning Sergeant Salemme informed Officer Jerry Masterson of the recoverymade in Cicero and ordered him and his fellow officers to conduct an investigatory stop of anyoneleaving the house on Francisco Avenue matching the descriptions given by the informant. At around1 p.m. Officer Masterson phoned Sergeant Salemme and told him he had just stopped three peoplein a Cadillac who matched those descriptions. At no time during the detention of the defendants wasan attempt made to obtain a search warrant for the Francisco Avenue residence.

In response to Officer Masterson's phone call, Sergeant Salemme went to the house onFrancisco Avenue. Sergeant Salemme stated that when he arrived there, at approximately 1:30 p.m.,defendants had been held for at least 40 minutes. Sergeant Salemme told defendants "what [their]investigation had yielded so far" and, in the presence of another officer, separately spoke with eachdefendant in the alley next to the house and asked each of them for permission to search theFrancisco Avenue residence. Sergeant Salemme acknowledged that none of defendants was givenany Miranda warnings. Sergeant Salemme stated that Calderon and Perez were not handcuffed whenhe spoke with each of them, but he did not indicate whether Jimenez was handcuffed when he spokewith him. Perez told Sergeant Salemme he did not live at the residence and refused to sign a consentto search form. Calderon, on the other hand, told Sergeant Salemme she lived there, and signed aconsent to search form. Jimenez also signed a consent to search form.

After the consents were signed by Calderon and Jimenez, the officers entered the home usinga set of keys that had been removed from Perez and subsequently found over 2,100 pounds ofmarijuana, approximately 29 pounds of methamphetamine, and 10.5 kilograms of cocaine in thebasement.

On cross-examination, Sergeant Salemme admitted that defendants were not allowed to leavefrom the time they were first stopped two blocks from the Francisco Avenue residence. In addition,he acknowledged that he could not recall whether defendants were handcuffed when they were takeninto the house on Francisco Avenue. Sergeant Salemme initially stated on cross-examination thathe spoke, in order, with first Calderon, next Perez, and last Jimenez, and that Calderon and Jimenezsigned consent forms after their respective conversations with him. Sergeant Salemme subsequentlyacknowledged, however, that the consent forms both listed 1:50 p.m. as the time they were signed. Regarding that inconsistency, he explained that, although he spoke with Calderon and Jimenezseparately, he ultimately read the consent forms to both of them together and then had them sign therespective forms at the same time. Sergeant Salemme denied that any search was conducted beforethe consent forms were signed.

Sergeant Salemme approved and signed two case reports written in connection with theinstant case, one for the Cicero surveillance leading to the recovery of money and the other for theFrancisco Avenue surveillance leading to defendants' arrests and the recovery of drugs. The reports,which were begun one or two days after defendants were arrested, did not indicate that SergeantSalemme called Officer Masterson and directed him to stop any Hispanic men or women leaving thehouse on Francisco Avenue matching the descriptions provided by the informant. The report relatingto the Cicero surveillance included the informant's description of the male Hispanic with a scar onhis face, but did not include the descriptions of the other two people he mentioned to SergeantSalemme. The report relating to the Francisco Avenue surveillance included the descriptions of allthree people described by the informant. The reports did not indicate at what time the officers firstentered the Francisco Avenue residence. Additionally, one of the reports stated defendants werestopped at 11:50 a.m., not 12:50 p.m., as Sergeant Salemme testified. Sergeant Salemme stated thatthe "11:50" notation was a typographical error and admitted he noticed this error while reviewingthe reports in connection with defendants' motions but never corrected it or prepared a supplementalreport.

Officer Jerry Masterson testified Sergeant Salemme called him at 9 a.m on August 26, 2000, and asked him and other members on his team to assist the team which had the 6234 South FranciscoAvenue residence under surveillance. Sergeant Salemme told Officer Masterson he had recovereda large sum of money in Cicero in an investigation related to the surveillance of the FranciscoAvenue residence and gave him descriptions of three suspects. One of the suspects was a maleHispanic who was approximately 40 years old, 5 feet 7 inches tall, and 180 pounds. The other twosuspects were a 5-foot 10-inch tall, 200-pound male Hispanic with multiple tattoos on his body anda female Hispanic with long dark hair. Both of them were approximately 25 years old.

Officer Masterson and the other officers on his team went to the Francisco Avenue residenceand set up surveillance. Between 12:45 p.m. and 1 p.m., Officer Masterson saw a maroon Cadillaccircle the block twice, turn into the alley on its third pass, and park in the carport at the FranciscoAvenue residence. All three persons in the car, who were identified at the hearing as defendants, gotout of the car and went inside the house. Approximately 10 to 15 minutes later defendants came outof the house and left in the car. Shortly thereafter, Officer Masterson and his fellow officers pulledover defendants' car a few blocks from the Francisco Avenue residence. The officers drew theirguns, identified themselves as the police, and ordered defendants out of the car. Defendants weresearched and handcuffed, but no weapons or contraband were found on them. The car was searchedand no weapons or contraband were found. Officer Masterson explained that he got on the "zoneradio" to ask for additional beat cars to be sent to the scene and noted that defendants were notallowed to get back into their car.

Officer Kathleen Schmidt testified she was one of the officers with Masterson whoapproached defendants after the car in which they were riding was pulled over. When OfficerSchmidt asked defendants who owned the car, they responded that they did not know. When sheasked what they were doing in the area, Calderon and Perez responded they had been walkingaround. Both denied being in the residence on Francisco Avenue. On cross-examination, OfficerSchmidt acknowledged she did not read Miranda rights to either Calderon or Perez before shequestioned them.

During the pat-down search of Perez, Officer Schmidt took keys that were hanging fromPerez's belt. She indicated she took the keys in order to protect her safety and the safety of herfellow officers. Approximately 15 minutes after the stop, the officers transported defendants to6234 South Francisco Avenue. While there, Schmidt walked down the gangway next to the houseand smelled marijuana, and noticed that the strongest odor came from the rear door leading to thebasement. Schmidt was not present when the consent forms were signed. However, she eventuallywent into the house, and while searching in the basement, she found marijuana, cocaine, andmethamphetamine.

The trial court granted defendants' motions to quash arrest and suppress evidence. The courtfound that although the police had sufficient information to initially conduct an investigative stop,their continued detention of defendants, based on the totality of the circumstances, transformed intoan arrest without probable cause. In support of this finding, the judge noted:

"Was there based on the information that they

had received from the confidential informant, the information thatthey had gained from their surveillance of the house in Chicago, thecar going around the block 3 times, the individuals leaving the houseafter 15 minutes, was that enough for an investigative stop. Yes.

Did an investigative stop take place? We have to look at thetotality of the facts. Once the car was stopped, guns were drawn atthe time. The people were ordered out of the car, placed on the backof the car. Handcuffed, placed into a separate squad car andtransported approximately 2 blocks away and they were detained formore than 30 minutes, 30 to 45 minutes till Sergeant Salemme came.

The State artfully and I mean this and I don't mean to -

they were trying to deceive, compartmentalize[] all these individuals'[sic] events and had case law supporting that each and every one ofthose events was not probable cause. But like anything else, we haveto look at the totality of the facts.

There is no doubt in my mind that that was an arrest.

Was there probable cause for the arrest? No."

In further support of the order granting defendants' motions to quash arrest and suppressevidence, the trial judge found that the consent to search given by Calderon and Jimenez was notvalid. The trial court first noted that none of defendants were given Miranda warnings. The trialcourt, however, focused primarily on its assessment of the credibility of the State's evidence. Thetrial court explained that credibility is not only based on truth and veracity, but also upon the abilityof a witness to recall events and to communicate a recollection of those events during a hearing ortrial. The trial court found that the State's evidence lacked credibility, explaining:

"Numerous things were not admitted. This was in a specialunit of the Chicago Police Department. There were mistakes madein the police reports, they were never corrected. There [were]omissions made in the police reports. There [were] errors made as faras their consent to search document showed that the time completedon the consent to search forms was 1:50 p.m.

Sergeant Salemme says they were not done at the same time. The consent to search reports said they were. *** Sergeant Salemmesaid he couldn't recall if the 3 individuals were taken into the housewith handcuffs on and these are abilities that pertain to the part ofcredibility about recollection and recordation. There [were] a lot ofomissions in the police reports. Sergeant Salemme testified to [sic]that observations in his report appeared to be typographical errors, butthey took no time concerning this case to ever file supplementalreports. So they cannot do that.

Someone has to tell them to go back to the basics. Certainlythere was aggressive police conduct here. Which was outstanding. But it conflicts with the Constitution. Their errors and omissionsconcerning their police reports, the lack of ability to recall certainincidents that should be recalled. All reflects on the credibility.

So as far as consent to search forms, I find that due to lack ofcredibility, that they are not valid either. So the consent to searchforms are invalidated. So the motions to quash arrest and suppressevidence are sustained."

ANALYSIS

"When a motion to suppress evidence involves factual determinations or credibilityassessments, we will reverse the trial court's ruling only if it is manifestly erroneous." People v.Love, 199 Ill. 2d 269, 274 (2002). When the parties do not dispute the facts or the credibility ofwitnesses, we apply de novo review to the trial court's ruling. Love, 199 Ill. 2d at 274. In the instantcase, defendants and the State presented conflicting evidence regarding the circumstancessurrounding defendants' detention and the consent to search given by Jimenez and Calderon. Thetrial court specifically found that the State's evidence lacked credibility. Accordingly, because thecredibility of the evidence presented is in dispute, we give great deference to the trial court's factualfindings and review those findings under the manifestly erroneous standard. However, we apply denovo review to the ultimate question of whether the trial court properly granted defendants' motionsto quash arrest and suppress evidence. Ornelas v. United States, 517 U.S. 690, 699, 134 L. Ed 2d911, 920, 116 S. Ct. 1657, 1663 (1996) (while findings as to relevant historical facts may bereviewed deferentially, the ultimate determination of probable cause should be reviewed de novo onappeal.)

Both the United States and the Illinois Constitutions govern the conduct of police officersin performing warrantless arrests and searches. U.S. Const., amends. IV, XIV; Ill. Const. 1970, art.I,