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                                                                                                       SECOND DIVISION
                                                                                                       AUGUST 29, 2000

No. 1-99-1644

Police officers procured a search warrant for the defendantand his apartment based on an informant's tip. An officer waswatching the apartment while awaiting the arrival of other policeofficers in order to execute the search warrant. Before otherofficers arrived, he observed the defendant exit the apartmentand drive away in an Oldsmobile. The officer followed andapprised other officers of the situation. The defendant parkedthe Oldsmobile on the street, entered an alley garage and exitedafter about 20 minutes driving a Chevrolet with license platenumber JMJ-792. The defendant was then stopped by the police.Cocaine was found on the defendant's person and he was placedunder arrest. His car was then searched and drugs were found ina compartment behind one of the seats. The police took him backto his apartment where drugs and related paraphernalia werefound. The defendant then signed a consent form for the policeto search the garage. The police found large amounts of cocaineand marijuana in the garage.

The defendant was charged by indictment with four counts ofpossession of cocaine with intent to deliver and four counts ofpossession of cannabis with intent to deliver. The defendantmoved to quash arrest and suppress evidence. The motion wasdenied by trial court. A jury found the defendant guilty. Hewas sentenced to concurrent sentences of 15 years in prison forpossession of cocaine with intent to deliver and six years inprison for possession of cannabis with intent to deliver. Thecourt also imposed a fine of $154,835.57 as the street value ofthe drugs.

The defendant now appeals, arguing that the trial courtshould have granted the motion to suppress because: (1) thesearch of his person was not authorized by the warrant except athis apartment; and (2) the police had no basis to search his car. Further, the defendant argues that his cannabis conviction mustbe vacated because the judge gave the jury a figure that was notin evidence as to the amount of drugs seized. The defendant alsocontends that the fine must be vacated because there was not abasis in the record for the court to assign a street value to thedrugs. The State argues that the fine must be increased by$10,000 because a prosecutor inadvertently gave the trial judgethe wrong figure for the street value.

BACKGROUND

Chicago police officer Earnest Cain testified that onFebruary 17, 1995, he was watching an apartment on North Campbellas he waited for other police officers to arrive in order toexecute a search warrant. Three days earlier an informant hadtold Officer Cain that the defendant, Manuel Gonzalez, had baggedand sold cocaine to him at the apartment. The informant alsorelated that he had helped Gonzalez to conceal some cocaine in awhite Chevrolet with license plate number JMJ-792. Thisinformant had provided information to the police three times inthe previous year. The tip had led to the recovery of narcoticson each occasion. Cain put this information in an affidavit andapplied for a search warrant. A judge issued the warrant on apreprinted form. Gonzalez' name was typed in the blank labeled"person." The address of the apartment was typed in the blanklabeled "premises." In the blank labeled "instruments articlesand things" was typed "a quantity of cocaine and related narcoticparaphernalia, any document or items that could be used as proofof residency and any United States currency."

Before the other officers arrived to perform the search ofthe apartment, Cain saw Gonzalez exit the building and drive awayin a brown Oldsmobile. Cain followed Gonzalez and apprised theofficers en route of the situation. Gonzalez parked theOldsmobile on the street at Diversey and Richmond. He thenentered an alley garage using an automatic garage door opener andclosed the door after him. About 20 minutes later, Gonzalezexited the garage driving a white Chevrolet with license platenumber JMJ-792. Cain stopped Gonzalez with the assistance of theother officers about six blocks away from the garage.

Cain asked the defendant his name. The defendant respondedthat his name was Gonzalez. Cain then showed Gonzalez the searchwarrant and proceeded to search Gonzalez' person. The searchproduced a plastic bag with a white powder that looked likecocaine. Cain placed Gonzalez under arrest. The officers movedthe car into a nearby alley. Cain searched the passengercompartment of the Chevrolet while Gonzalez was sitting,handcuffed, in the back of a police cruiser.

Cain testified that drugs are frequently transported insecret compartments or "traps" in cars and that these traps areoften accessed using an electronic switch. While searching thecar, Cain saw two indentations behind the passenger side sunvisor that, Cain said, looked like trap switches. When hepressed them, however, nothing happened. He then started the carand pressed them again, again to no avail. After that, Cainstarted pressing all the buttons on the dashboard. When hepressed the rear defrost button, Cain said, one of the rear seatsfell forward of its own accord, revealing a large quantity ofcocaine and marijuana.

The officers then took Gonzalez and the Chevrolet to theapartment at North Campbell. When they knocked at the door, LucySanchez, Gonzalez' live-in girlfriend, answered but did not openthe door. One of the officers suggested breaking the door down,but Gonzalez opened the door with a key. Once inside, theofficers found a small amount of cocaine and marijuana. Theyalso found a gram scale, a spoon with cocaine residue on it,plastic freezer bags, and a letter sent to Gonzalez at thataddress.

When confronted with this evidence, Gonzalez confessed thathe had been bagging and delivering drugs for a man named"Roberto." He signed a consent form for a search of the garageon Diversey and Richmond. Officers then went to the garage andopened it with the garage door opener that Gonzalez had used. Inside the garage the officers found 20 pounds of marijuana in 20bags and over a kilogram of cocaine in two bags, along with ascale and packaging materials. In accordance with policedepartment policy, the police retained 10 of the bags ofmarijuana for evidence. The other 10 were destroyed in order tosave space.

Chicago police officer Richard Rowan also testified, largelycorroborating Cain's testimony.

Gonzalez testified that the apartment belonged to hisgirlfriend and that he left the apartment on February 17, 1995,in order to go to a job interview. Although he was driving anOldsmobile when he left, he had a newer Chevrolet that was inbetter condition parked in a garage in which he had recentlyrented space from a friend of his brother-in-law. Gonzalez saidthat the first time he had been in the garage was when he put hiscar inside the night before. He decided to drive the Chevroletto the interview since he thought it would make a betterimpression. He stopped briefly in the garage in order to checkhis oil.

Gonzalez testified that the police stopped him and searchedhim without showing him a warrant. He said that the police didnot find anything on him. He sat in the back of a police car foran hour before being taken to the North Campbell apartment. Whenthey knocked, Sanchez answered the door but would not let them inbecause she was not fully dressed. Sanchez opened the door,however, when the police began to kick it. Gonzalez testifiedthat he signed the consent form not knowing what it said becausethe police threatened to arrest Sanchez and take away herchildren. He denied that he confessed to working for a man namedRoberto. Gonzalez said that he had used the rear defroster inthe Chevrolet before and that it operated normally. He said thathe lived on Moody Avenue but received mail at the North Campbelladdress because he had been having trouble with the mail deliveryat his primary residence. Gonzalez testified that he did notknow that there were any drugs in the Chevrolet or in the garage.

Arsenio Gutierrez testified that he owned the garage andthat he rented it to Roberto for $125 per month. He said that hegave the only opener to Roberto. Gutierrez said that he did notknow Gonzalez and had never seen him. He admitted, however, thathe did not normally go near or check inside the garage.

Lucy Sanchez testified Gonzalez was not on the lease for theNorth Campbell apartment and that he would only stay there aboutonce per month. She said she had known Gonzalez since 1983 andhad three children with him. Sanchez testified that she let thepolice in when they knocked. She also said that Gonzalez signedthe consent form in order to keep the police from arresting herand taking away her children.

At the motion to quash arrest, the defense argued that thewarrant only gave the police the authority to search Gonzalez atthe North Campbell apartment, not on a public thoroughfare. Thetrial judge denied the motion, stating that he would be willingto reconsider his ruling if the defense could show him case lawinterpreting search warrants as the defendant urged.

At the close of evidence on the motion to suppress, theState filed a motion for a directed finding, which the trialcourt granted. The court reasoned that the search of the car wasconstitutional as a search incident to arrest. At the close ofthe trial, as the jurors were deliberating, they sent a note tothe judge asking how much cocaine and marijuana was found in theChevrolet. Defense counsel suggested that the number be given tothe jury, while the State recommended that the jury be told torely on its notes and memories. Both parties agreed that theinformation was in evidence. The trial judge sent an answer tothe jury, using a figure provided by the defense from a policelab report, over the State's objection. As it happens, however,the amount of marijuana had not been put in evidence.

The jury convicted Gonzalez, and the judge sentenced him toconcurrent sentences of a minimum of 15 years in prison forpossession of more than 900 grams of cocaine with intent todeliver and six years in prison for possession of more than 500grams of cannabis with intent to deliver. The judge also imposeda fine of $154,835.57, as the street value of the drugs, pursuantto statute. 730 ILCS 5/5-9-1.1(a) (West 1996). The trial judgebased this dollar amount on the arrest report.

Gonzalez appeals, arguing that: (1) the trial court erred indenying the motion to quash arrest and suppress evidence sincethe warrant only authorized the search of Gonzalez at the NorthCampbell apartment; (2) the trial court erred in denying themotion to quash arrest and suppress evidence since the search ofthe car was not a valid search incident to arrest; (3) theconviction for possession of more than 500 grams of cannabis withintent to deliver should be reversed since the conviction wasbased on a figure not in evidence for the weight of the drug; and(4) the fine must be vacated because there was insufficientevidence at the sentencing hearing to support the figure given asthe street value of the drugs. For its part, the State arguesthat we should increase the fine because a prosecutor accidentlyread to the judge an amount for the value of the drugs that waslower than was recorded on the police report.

In examining the motions to quash arrest and suppressevidence, we review the factual findings and credibilitydeterminations of the trial court for manifest error. However,we apply a de novo standard to the legal determination of whethersuppression of the evidence is warranted under those facts. People v. Mabry, 304 Ill. App. 3d 61, 64, 710 N.E.2d 454, 456(1999); People v. Gonzalez, 184 Ill. 2d 402, 411-12, 704 N.E.2d375, 380 (1998). In our view, it was not clear error for thetrial court to find the State's witnesses to be credible. Wetherefore analyze the constitutionality of the searches de novounder the State's version of the facts.

Gonzalez first argues that the court erred in denying themotion to quash arrest because the search of his person was notauthorized by the warrant. Initially we note that the waiverrule is applicable to this issue since the defendant did notinclude it in a posttrial motion. People v. Enoch, 122 Ill. 2d176, 186, 522 N.E.2d 1124, 1129-30 (1988). While the defendantdid not properly raise the issue, the waiver rule is a limitationon the parties and not the courts. People v. Hamilton, 179 Ill.2d 319, 323, 688 N.E.2d 1166, 1169 (1997). In this case, wechoose to consider the merits of this issue.

A valid search warrant must state with particularity theplace to be searched and the persons or things to be seized. People v. McPhee, 256 Ill. App. 3d 102, 108-09, 628 N.E.2d 523,528 (1993); U.S. Const. amends. IV, XIV; Ill. Const. 1970, art.I,