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FIRST DIVISION

SEPTEMBER 30, 1998

No. 1-97-2112

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

Defendant appeals his conviction after a bench trial for possession of controlled substance withintent to deliver and unlawful use of a weapon by a felon. Defendant raises four issues for review.He contends that: (1) he did not knowingly waive his right to a jury trial; (2) the State failed toprove him guilty beyond a reasonable doubt; (3) the trial court erred in denying his motion for anew trial; and (4) the defense attorney rendered ineffective assistance of counsel. We reverse thedecision of the trial court, finding that the evidence was insufficient to prove defendant guiltybeyond a reasonable doubt.

I. FACTS

At trial, Chicago police officer Thomas Horton testified that on February 5, 1996, he saw thedefendant enter the apartment building at 2104 South Washtenaw. The multiple-unit buildingcontained a security door leading to a common entry to front and rear apartments. Minutes afterdefendant entered the apartment building, Officer Horton noticed that the lights went on in therear first-floor apartment. The next day, February 6, 1996, Officer Horton obtained a searchwarrant to search defendant and the rear first-floor apartment of 2104 South Washtenaw.Defendant was then placed under surveillance.

Later that same day, Chicago police officer Ramirez stopped defendant next to his parked car at2204 South California Avenue. Officer Horton then came to defendant's parked car, wheredefendant and Officer Ramirez were located, and handed defendant a copy of the search warrant.After the officers advised defendant of his Miranda rights in Spanish, they performed a pat-downsearch on defendant. The officers recovered more than a dozen keys from defendant.

The officer next placed defendant in the squad car and drove to the 2104 South Washtenawaddress. With a key recovered from defendant, the officers opened the security door to thecommon entrance and entered the building. The officers then went to the rear apartment on thefirst floor and found that there were two padlocks on the front door to the apartment. Again, withtwo separate keys from the defendant, the officers opened each padlock.

The officers entered and secured the apartment. Before searching the entire apartment, theofficers noticed that a bedroom door next to the kitchen was locked with a padlock. Using afourth key from defendant's set of keys, the officers unlocked the bedroom door. The officersthen searched the bedroom and found, underneath a pile of clothes next to two dressers,3