Find Legal Information

5 September 2000
FIRST DIVISION

1-00-0046

The defendant, a Chicago police officer, was charged byindictment with armed robbery, attempt (armed robbery) and twocounts of official misconduct. The charges were based on anencounter that the defendant and his brother-in-law had with twomen outside a restaurant. The defendant searched one of the menat gunpoint while his brother-in-law searched the other man. Thedefendant found nothing on the man that he searched but hisbrother-in-law allegedly took money from the wallet of the otherman. The defendant made a motion to suppress evidence and quasharrest on the grounds that police officers seized evidence andarrested him after entering his apartment without his consent andwithout a warrant. The trial judge denied the motion, findingthat the defendant had freely given his consent for the officersto enter his apartment, that the evidence seized was in plainview and that the officers had probable cause to make the arrest.

A jury convicted the defendant of armed robbery and thecount of official misconduct based upon the armed robbery, butacquitted him of attempt (armed robbery) and the count ofofficial misconduct predicated upon the attempt. The trial courtsentenced the defendant to a term of seven years imprisonment forthe armed robbery conviction and a concurrent term of two yearsimprisonment for the official misconduct conviction.

The defendant now appeals, arguing that his convictions mustbe reversed because: (1) the trial court erroneously denied hismotion to suppress evidence and quash arrest; (2) the jury'sverdicts were legally inconsistent; and (3) the trial courterroneously allowed the prosecution to elicit on cross-examination both that the defendant's brother-in-law hadpreviously been convicted of a felony and that there was a policedepartment policy against officers associating with known felons.

We affirm.

BACKGROUND

Defendant Mark Lozano, a Chicago police officer, testifiedthat around midday on September 29, 1997, he and his friendArturo Munoz were going to a local gym. Lozano did not have hisservice weapon and police identification with him at the time. As they were driving, a car suddenly pulled out in front of them,blocking their way. Immediately thereafter another car pulledout and blocked their way from the rear. Several individuals gotout and surrounded Lozano's car while flashing gang signs andyelling slogans. Lozano understood from the slogans that theywere members of a local street gang who thought that Lozano andMunoz were members of a rival gang. Lozano and Munoz told themthat they were not members of that or any other gang. During thealtercation that ensued, one of the men threw a rock through thewindshield of Lozano's car. Munoz told the men that Lozano was apolice officer and the men scattered. Lozano triedunsuccessfully to catch the person who had thrown the rock.

Lozano testified that he and Munoz then went on to the gymwhere he called the police. The police operator advised Lozanoto return to the scene of the altercation where a squad car wouldmeet them. They waited at the scene for about 10 minutes for thesquad car to arrive and when it failed to appear they went toLozano's apartment to again call the police. This time thepolice operator told them they could file a report over thephone. Munoz then filed a report. Lozano got ready for his shiftwhich was 3 p.m. to 11 p.m.

When Lozano finished his shift, he went to his brother'shouse. His brother-in-law Thomas Gonzalez (Thomas) also livedthere. Lozano still was wearing his uniform trousers and shoes. Lozano and Thomas left to go to Tito's Hacienda, a nearbyrestaurant. Outside the restaurant Lozano saw someone resemblingone of the gang members who participated in the confrontationearlier that day. That individual, Lehman Benaga, was speakingwith another man, José Gonzalez (José). Lozano and Thomas parkedthe car. As they walked toward the restaurant, Lozano thought hesaw Benaga make a motion as if to reach for a weapon. Lozanoasked Benaga where he could find some tacos. Benaga directed himto another restaurant. Lozano and Thomas started to walk awayand then Lozano drew his service weapon, a chrome-finished 9millimeter semi-automatic, placing it to Benaga's neck. Lozanothen identified himself as a police officer and performed a pat-down search. Seeing out of the corner of his eye that José wasapproaching, Lozano called out for Thomas to help him. Thomasthrew José up against a wall and searched him. Lozano put awayhis weapon when he found that Benaga was not armed. Benaga didnot believe that Lozano was a police officer, so Lozano showedBenaga his badge. After a brief argument with Benaga and José,Lozano and Thomas left.

Lozano went home after dropping off Thomas. He parked hiscar in an alley near his apartment building and started walkingback toward Tito's Hacienda. Soon afterward, two policeofficers, James Flores and Robert Poremba, pulled up beside himin an unmarked car. Poremba asked Lozano what he was doing. Lozano showed his badge and identification. Lozano asked if theyhad caught the people who had smashed his windshield. They toldhim that they did not know anything about that. Lozano said,"This is stupid, I'm going to go home."

Lozano testified that he went home and went to bed. An houror two later, there was a knock at his door. When he opened thedoor, about six police officers, led by Police Sergeant WilliamDunn, entered without asking permission. Some of the officersstarted searching the apartment. Lozano asked what was going on,but received no answer. Lozano then asked for everybody to leaveexcept Sergeant Dunn. Dunn responded that he was the one incharge and pointed to the sergeant's stripes on his uniform. Dunn then ordered Lozano to come with them to the station. Officers took Lozano's badge, handgun and a pellet gun, all itemswhich were lying on the kitchen table.

José and Benaga testified that, although they were standingnear each other outside the restaurant on the night of therobbery, they did not know each other. Lozano and Thomas came upto them and Lozano asked where they could get some tacos. Benagatold them that Tito's was open. Lozano and Thomas started towardthe restaurant, but then Lozano spun around, pulled out a chrome-finished handgun and put it to Benaga's neck. He searched Benagabut did not find anything. Thomas threw José up against a wall.Lozano said that he was a police officer and displayed his badge. Thomas took out José's wallet and removed about $70. José askedhim "Why are you taking my money?" Lozano started back towardsthe car and Thomas followed him, counting the money. Thomas wentback briefly and gave José a few dollars "for the bus." Abystander, Joel Campos, said "They're not police officers. Writedown their plate number." Campos wrote down the number andcalled the police. Later, José and Benaga went to the policestation and identified Lozano in a lineup.

Campos testified that as Thomas and Lozano walked away aftergiving José the bus money they were laughing and Lozano said"gracias." Campos made a tentative identification of Lozano atthe police station, but admitted that he was not positive he wascorrect.

Officer Poremba testified that he and his partner, OfficerFlores, were patrolling in their unmarked car when they receiveda call about an armed robbery in the area of Tito's Hacienda. Aphysical description of the suspects was provided, along with adescription of their car and the license plate number. Accordingto the report, one of the offenders had claimed to be a policeofficer. Poremba and Flores noticed Lozano walking near thescene of the robbery and asked him what he was doing. Lozanosaid he was a police officer and showed identification. Theofficers noticed that Lozano matched the description of one ofthe robbers and that he was wearing police uniform pants andshoes.

After Lozano started back to his apartment, Flores andPoremba exited their car and followed him on foot. Outside thebuilding they saw a car that matched the description of the oneused by the robbers and had the same license plate number. Theychecked the number and found that the car was registered to apolice officer named Mark Lozano. At that point they calledtheir supervisor, Sergeant Robert Stasch.

Stasch testified that he met up with Flores and Porembaoutside the apartment building. Stasch told them that he knewLozano and knew him to reside at that address in the 2nd floorrear apartment. Another sergeant, Sergeant William Dunn, thenarrived. After a brief conversation with the watch commander,they decided to talk to Lozano. The entrance to the building wasunlocked. They entered. One of the officers knocked on the doorof the 2nd floor rear apartment. Lozano answered the door,wearing boxer shorts and a T-shirt. Dunn asked him if he wasMark Lozano and if the car in the alley was his. Lozano answeredyes.

Stasch approached the door and said "Mark, I'm SergeantStasch from the 12th district. Do you remember me?" Lozanoreplied "Yes, Sergeant. What's up?" Stasch told him that theyhad received a report of a problem outside the restaurant. Heasked if Lozano had had a problem with two Hispanic men there. Lozano said that some gang members had thrown a rock at his car. Stasch asked if they could come in to find out what had happenedand "straighten things out." Lozano stepped aside to let theofficers in. The officers entered the apartment.

In the conversation that followed, Stasch told Lozano thatthere had been an allegation that he had drawn his handgun andtaken some money from the men in front of the restaurant. Lozanodenied having done so. Stasch asked if he could come to thestation. Lozano asked if he could get dressed. Stasch said yes. After Lozano was dressed, they left. The officers took Lozano'sbadge, his service weapon and a pellet gun, which were all lyingon a table near the door. Later, at the station, the victimspicked Lozano out of a lineup. He was formally placed underarrest.

Lozano and Thomas were charged by indictment with the armedrobbery of José and the attempted armed robbery of Benaga. Thegrand jury also charged Lozano with two counts of officialmisconduct, predicated on the armed robbery and attempt (armedrobbery), respectively. Lozano and Thomas were tried separately.

Lozano filed a motion to quash arrest and suppress evidence.He argued that the seizure of his handgun and badge was theproduct of an illegal, warrantless search of his residence. Healso argued that the police arrested him at his apartment andthat they did not have probable cause to do so without theillegally seized evidence. The trial court denied the motions,crediting the police officers' testimony that Lozano had givenconsent for them to enter his apartment and that the badge andgun were in plain view once they were inside. The judge concededthat Lozano may have been under arrest at his apartment, butruled that the police had probable cause to arrest him there.

Lozano testified in his own defense, contending that he hadbeen acting properly as a police officer when drawing his weapon,searching Benaga and enlisting Thomas' aid in searching José. Oncross-examination, the prosecution, over objection, elicited thatThomas had a felony conviction and that there was a policedepartment regulation prohibiting officers from associating withknown felons.

The jury convicted Lozano of the armed robbery of José andthe count of official misconduct based on the armed robbery. However, it acquitted him of the attempted armed robbery ofBenaga and the count of official misconduct based on the attempt.

Lozano now appeals, arguing that: (1) the trial court erredin denying his motions to suppress evidence and quash arrest; (2)the trial court erred in allowing the prosecution to raiseThomas' felony conviction and the department rule againstassociating with felons; and (3) the verdicts returned by thejury cannot stand because they are inconsistent.

ANALYSIS

Lozano first contends that the trial court erred in findingthat the police had a right to enter his apartment without awarrant. According to Lozano, the police entered without askingpermission. The State's witnesses, however, testified that theyasked permission to enter and that Lozano freely gave his consentby opening the door and stepping aside. The trial court acceptedthe State's version of events. It is the province of the trialcourt to resolve conflicting testimony and assess the credibilityof witnesses. People v. Jones, 184 Ill. App. 3d 412, 427, 541N.E.2d 132, 141 (1989). As the court's factual findings were notagainst the manifest weight of the evidence, we do not disturbthem. Levy v. Markal Sales Corp., 268 Ill. App. 3d 355, 364, 643N.E.2d 1206, 1214 (1994).

One may waive the Fourth Amendment protection againstunreasonable searches by consenting to a search. People v.Stewart, 10 Ill. App. 3d 187, 189, 293 N.E.2d 169, 171 (1973).When the trial court is faced with conflicting testimony, itsdetermination that a suspect in fact manifested consent will beupheld unless clearly unreasonable. Stewart, 10 Ill. App. 3d at189, 293 N.E.2d at 171. In this case, the officers testifiedthat they asked Lozano if they could come in. Lozano respondedby opening the door and standing aside. Consent to search may bemanifested by conduct, as opposed to words. In re M.N., 268 Ill.App. 3d 893, 897, 645 N.E.2d 499, 503, (1994). Moreover, it wasreasonable for the police to interpret Lozano's conduct asconsent to enter. People v. Henderson, 142 Ill. 2d 258, 299, 568N.E.2d 1234, 1253 (1990), declined to follow on other grounds byPeople v. Terry, 183 Ill. 2d 298, 700 N.E.2d 992 (1998); Peoplev. Petersen, 110 Ill. App. 3d 647, 654, 442 N.E.2d 942, 947(1982).

Whether the manifestation of consent was voluntary is afactual determination made based on the totality of thecircumstances. Shneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L.Ed. 2d 854, 863, 93 S. Ct. 2041, 2048 (1973). The burden is onthe prosecution to show that consent was freely given. Peoplev. Gross, 166 Ill. App. 3d 413, 423, 519 N.E.2d 1043, 1051(1988). A trial court's ruling on this issue will only be setaside if clearly erroneous. Gross, 166 Ill. App. 3d at 4223, 519N.E.2d at 1051.

We believe the trial court correctly determined that, inview of the totality of the circumstances, the consent wasvoluntary. Lozano claims that he was forced to acquiesce in thesearch and questioning by Dunn's invocation of his authority as asergeant. It is true that the prosecution must show that apurported consent was more than acquiescence to a claim of lawfulauthority. Jones, 126 Ill. 2d at 427, 541 N.E.2d at 141. Thus,the fact that the person who requested entry was Lozano'ssuperior at work may be a relevant consideration in determiningwhether consent was voluntary. However, according to the versionof events put forward by the officers, the sergeants did nothingto exploit their rank in order to make Lozano submit to a search. The trial court chose to believe the State's witnesses. Accordingly, under the totality of the circumstances, the consentwas voluntary. The entry was not violative of Lozano's rights.

Since the entry was lawful, the seizure of the badge and gunwas permissible under the "plain view" doctrine. Seizure ofevidence in plain view is permissible if: (1) the officer did notviolate the fourth amendment in arriving at the place from whichthe evidence could be plainly viewed; (2) the incriminatingnature of the evidence was immediately apparent; and (3) theofficer had lawful access to the items. Horton v. California,496 U.S. 128, 136-7, 110 L. Ed. 2d 112, 123, 110 S. Ct. 2301,2308 (1990). In this case, we have determined that the policehad a lawful right to be in the apartment and thus could view theevidence and gain access to it. Lozano has not denied that theitems were in the officers' plain view on his kitchen table. Asthe victims had reported that the robber matching Lozano'sdescription had a badge and a silver-colored handgun, theincriminating nature of the items seized was immediatelyapparent.

Lozano also contends that he was improperly arrested in hisapartment. At the hearing on the motion to quash arrest, theState argued that arrest did not occur until after Lozano hadbeen picked out of a lineup by the victims. However, the trialcourt found that even if the arrest had taken place at Lozano'sapartment, the arrest was still proper. We agree. The policemay arrest a person in his or her residence if the person hasconsented for them to be there and the police have probablecause. People v. Bean, 84 Ill. 2d 64, 69, 417 N.E.2d 608, 611(1981). The probable cause requirement is satisfied when thepolice possess sufficient information to lead a reasonable personto believe that a crime has been committed and that the defendantcommitted it. People v. Gaston, 259 Ill. App. 3d 869, 874, 631N.E.2d 311, 315 (1994). Accepting the factual findings of thecourt below as not manifestly erroneous, we review de novo theultimate determination of whether these facts were sufficient toprovide probable cause. People v. Mabry, 304 Ill. App. 3d 61, 64,710 N.E.2d 454, 456 (1999); Ornelas v. United States, 517 U.S.690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (1996). Here, Lozano matched the physical description of one of therobbers, he had a handgun and badge similar to those used by oneof the robbers, he admitted ownership of the car allegedly usedby the robbers. These circumstances were sufficient to give thepolice probable cause to make the arrest. Accordingly, themotion to quash was properly denied.

Lozano also contends that his convictions must be reversedbecause the jury's verdicts were fatally inconsistent. Verdictsare reversible for inconsistency if they necessarily involve theconclusion that the same essential elements of the crimes inquestion both existed and did not exist. People v. Murray, 34Ill. App. 3d 521, 531, 340 N.E.2d 186, 193 (1975). It is notenough that the jury convict and acquit of crimes arising out ofthe same set of facts. People v. Klingenberg, 172 Ill. 2d 270,274, 665 N.E.2d 1370, 1373 (1996).

Lozano was charged with attempted armed robbery of Benaga(Benaga had nothing to steal) and the armed robbery of José(under an accountability theory). Intent is an essential elementof both attempt (armed robbery) and accountability for armedrobbery. 720 ILCS 5/18-1 (West 1996), 720 ILCS 5/5-1 (West1996). Thus, Lozano argues, the jury's verdicts convicting himof armed robbery and acquitting him of attempted armed robberyimply that he both did and did not have intent to steal. Thisargument is not persuasive. The crimes as charged were directedat different victims. See People v. Thurman, 169 Ill. App. 3d996, 1005, 523 N.E.2d 1184, 1190 (1988). For one crime therelevant intent was the intent to take property from Benaga. Forthe other crime the relevant intent was the intent to help Thomastake money from José. The non-existence of one of these mentalstates does not necessarily imply the non-existence of the other. The jury concluded that the State had not proven that Lozanointended to rob Benaga, but had proven that he intended to helpThomas rob José. The findings are not fatally inconsistent.

From this conclusion, it also follows that the convictionand acquittal on the counts of official misconduct based on thearmed robbery and attempt (armed robbery), respectively, muststand.

Finally, Lozano contends that the trial court abused itsdiscretion in allowing the prosecution to elicit on cross-examination that Thomas had a felony conviction and that therewas a police regulation forbidding officers to associate withknown felons. The State maintains that this was permissibleimpeachment to rebut Lozano's implication that he had a right tocall upon Thomas to aid him in performing an arrest.

Police officers are permitted by statute to call upon othersfor aid in making an arrest.

"107-8. Assisting peace officer.

(a) A peace officer making a lawful arrestmay command the aid of persons over the age of 18.

(b) A person commanded to aid a peace officershall have the same authority to arrest as thatpeace officer.

(c) A person commanded to aid a peace officershall not be civilly liable for any reasonableconduct in aid of the officer." 725 ILCS 5/107-8(West 1996).

The defense theory had Lozano calling out to Thomas to searchJosé not in order to rob him, but in order to help Lozano safelyeffectuate an arrest. The State maintained that it could askLozano about the regulation and Thomas' felony conviction inorder to show that it was not proper for Lozano to ask Thomas'aid in making an arrest. The trial court accepted thisrationale.

"Now the State has asked to ask if the witness wasaware of departmental regulations not to associate withpeople known to be convicted felons. *** The Courtfinds that it's relevant because he did assert as partof his defense that he felt he had a right to askThomas Gonzales to assist him with these activities sothat objection will be overruled."

The latitude to be allowed on cross-examination is withinthe discretion of the trial court. People v. Collins, 106 Ill.2d 237, 269, 478 N.E.2d 267, 281 (1985). Moreover, a trialcourt's ruling regarding cross-examination will not be disturbedabsent manifest prejudice to the defendant. Collins, 106 Ill. 2dat 269, 478 N.E.2d at 281. It can be argued in this case that,in view of the statute, the police regulation would not haveprohibited Lozano from requesting the aid of a known felon inmaking an arrest if he believed himself to be in danger. However, while the relevance of the line of cross-examinationallowed by the court becomes a disputable issue, under thecaselaw we cannot say that the trial court abused its discretionin finding as it did. In reviewing for an abuse of discretion,"[t]he question is not whether the appellate court agrees withthe circuit court, but whether the circuit court actedarbitrarily, without employing conscientious judgment, or whetherin view of all the circumstances the court exceeded the bounds ofreason and ignored recognized principles of law so thatsubstantial prejudice resulted." Moffitt v. Illinois Power Co.,248 Ill. App. 3d 752, 758, 618 N.E.2d 1305, 1309 (1993).

For the foregoing reasons, the judgment of the circuit courtis affirmed.

Affirmed.

FROSSARD and GALLAGHER, JJ., concur.