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                                Appellate Court                          Date: 2017.04.21
                                                                         09:56:18 -05'00'




                   People v. Garcia, 2017 IL App (1st) 142141



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            EDWIN GARCIA, Defendant-Appellant.



District & No.     First District, First Division
                   Docket No. 1-14-2141



Filed              March 6, 2017
Rehearing denied   March 21, 2017



Decision Under     Appeal from the Circuit Court of Cook County, No. 13-CR-3129; the
Review             Hon. Nicholas Ford, Judge, presiding.



Judgment           Affirmed.



Counsel on         Michael J. Pelletier, Patricia Mysza, and Benjamin Wimmer, of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Margaret M. Smith, and Sean Enright, Assistant State’s Attorneys, of
                   counsel), for the People.



Panel              PRESIDING JUSTICE CONNORS delivered the judgment of the
                   court, with opinion.
                   Justices Harris and Simon concurred in the judgment and opinion.
                                             OPINION

¶1       Defendant, Edwin Garcia, who was under 18 years of age at the time of his arrest, was
     charged with unlawful possession of a firearm and firearm ammunition (720 ILCS
     5/24-3.1(a)(1) (West 2012)) after police made a warrantless entry into his home and
     subsequently performed a search of his person, which produced a gun. Officers had gone to
     defendant’s home to arrest him on an unrelated misdemeanor complaint. Prior to trial,
     defendant’s counsel filed a motion to quash arrest and suppress evidence, arguing that the gun
     seized from defendant was obtained through a warrantless entry into his home after the police
     entered without permission. The trial court denied the motion, finding that although
     defendant’s constitutional rights had been violated, suppression was not warranted where the
     evidence was seized outside the home. After a bench trial, defendant was found guilty and
     subsequently sentenced to two years of intensive probation. Defendant appeals, arguing that
     the trial court erred in denying the motion to quash arrest and suppress evidence, because the
     evidence was obtained through exploitation of the officers’ illegal warrantless arrest within
     defendant’s home and was subject to the exclusionary rule. Alternatively, defendant argues
     that his counsel was ineffective for failing to impeach one of the officers regarding his
     testimony that he received permission to enter defendant’s home. For the following reasons,
     we affirm the decision of the trial court.

¶2                                       BACKGROUND
¶3      Defendant was arrested on January 27, 2013, and charged by information with one count of
     unlawful possession of a firearm in violation of section 24-3.1(a)(1) of the Criminal Code of
     2012 based on his possession of a firearm while under 18 years of age. 720 ILCS
     5/24-3.1(a)(1) (West 2012).

¶4                         Motion to Quash Arrest and Suppress Evidence
¶5       On July 22, 2013, Defendant filed a pretrial motion to quash arrest and suppress the gun
     seized from him on the grounds that it was obtained through a warrantless entry into his home.
     The court held a hearing on defendant’s motion on May 6, 2014. At the hearing, defendant
     presented the testimony of his brother Ruben Garcia, Jr., and his mother, Bonita Garcia.
¶6       Ruben testified that on January 27, 2013, he was at his then home, located at 4151 West
     78th Place in Chicago, where he lived with his parents and brothers, one of whom is defendant.
     At the time the police arrived around 7 or 8 p.m., Ruben was watching TV in the living room
     with his mother, one of his brothers (not defendant), and his brother’s friend. Ruben stated that
     he then heard knocking on the front door, which was right next to the TV. His mother then got
     up to answer the door and opened it about 10 inches to see who it was. Ruben testified that
     “when they asked [ ] for Edwin only, she just turned to call his name, but the thing is they
     barged in without any authorization.” Ruben stated that the people on the other side of the door
     merely asked for Edwin and did not say anything else. He further testified that the people who
     came in were not in uniform and “dressed casual.” Ruben called for defendant to come out of
     his room, where he was with his girlfriend, and at that point, he did not know the people who
     had entered the house were police. According to Ruben, after defendant came out of his room,
     the officers said they were going to ask defendant some questions; then the officers grabbed
     defendant and handcuffed him behind his back in the living room. Ruben stated that neither of

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       the two officers ever showed him a warrant, left a search warrant at the house, or told him they
       had a search warrant. After defendant was handcuffed, Ruben testified that the officers took
       defendant outside to their vehicle.
¶7         On cross-examination, Ruben testified that he was not the one who answered the door and
       allowed officers inside. Ruben also stated that he was unaware that defendant was a named
       offender in an armed robbery.
¶8         Bonita testified that on the evening of January 27, 2013, she was home with her children
       watching TV. When she heard the knock on the front door, she opened the door slightly and
       saw two people who then asked for defendant. She testified that they asked for Edwin before
       she opened the door. She, like Ruben, testified that when she turned to call for defendant, the
       officers came inside the house. Bonita testified that neither of the officers asked permission to
       come in the house and neither told her they were police before they entered. She testified that
       she “thought they were Edwin’s friend. When my son went to call Edwin, then they said they
       were police officers and that they were going to ask him some questions, but at that moment
       they grabbed him, pulled him, and handcuffed him and they took him.” Bonita stated that
       Edwin was handcuffed in the living room, the police searched him, and then they said they
       were taking him for questioning. Bonita also testified that neither of the men showed her a
       search warrant, told her they had a search warrant, or left any papers at her house.
¶9         On cross-examination, Bonita stated that although she was testifying with the help of an
       interpreter, she spoke some English and could understand what the English-speaking officers
       were saying that day. Bonita also testified that the officers searched defendant inside the home
       but that nothing was taken from him then. Bonita stated that she did not know that defendant
       was a named offender in an armed robbery. She also did not know whether the officers
       searched defendant after they took him outside the house.
¶ 10       The State presented the testimony of Officer Jeffrey Brouder, who testified that on January
       27, 2013, at approximately 7:15 p.m., he was working “plain clothes tact” when he and his
       partner, Officer Silder, were assigned to an armed robbery investigation in which defendant
       had already been identified as a suspect. Officer Brouder testified that in furtherance of the
       investigation, he and Officer Silder went to defendant’s home address. He further testified that
       when they arrived at defendant’s home, “We knocked on the door and we were greeted by a
       family member. We asked if Edwin was home, he said yes.” Officer Brouder stated that the
       “he” he was referring to was a younger male to whom he identified himself as a police officer
       and that defendant’s mother did not come to the door with this younger male, whom Officer
       Brouder learned was defendant’s brother. Officer Brouder stated that he told defendant’s
       brother that they needed to speak to defendant and that “He invited us in and went and got his
       brother.” Specifically, Officer Brouder testified that they asked if they could come in and
       defendant’s brother said yes. The officer further stated that there were approximately six other
       people in the home, including defendant’s mother and some friends. Officer Brouder stated
       that defendant was placed in custody in the front room in the presence of the other family
       members but they did not search defendant or ask him any questions on scene. Officer Brouder
       further stated that after defendant was placed in handcuffs, he was escorted to the officers’
       vehicle “where a custodial search was conducted before we put him in the back of the car.” The
       officer testified that the search revealed a handgun.
¶ 11       On cross-examination, Officer Brouder stated that neither of the reports he prepared in this
       case made any reference to who answered the door. Officer Brouder also stated that they were

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       acting on signed criminal complaints but did not have a search warrant or arrest warrant. He
       also stated that he never saw the complaints. Officer Brouder testified that, “the victim [of the
       armed robbery] stated that he did not want to proceed with felony complaints for the robbery
       and signed for a misdemeanor battery and a theft.”
¶ 12       The parties then argued the motion. The State conceded that this was a warrantless entry
       into a home but argued that the officers had probable cause to arrest this defendant because “he
       was a named offender in an armed robbery.” The State recognized that the testimony conflicted
       regarding who answered the door and whether permission to enter was given but contended
       that the police were more credible because the family was biased. Thus, the State asserted that
       the recovered handgun should not be suppressed because the exclusionary rule does not apply
       for warrantless entries into homes where probable cause exists and where the evidence is
       obtained outside the home. The defense argued that because the officer had never seen the
       complaints and they were not present in court, it was impossible to know what they stated.
       Further, defense counsel asserted that officers could not enter defendant’s home to arrest him
       on a misdemeanor, which was the charge he ultimately faced.
¶ 13       When delivering its ruling, the court acknowledged, “Obviously there is a real divergency
       in what happened in this case.” The court went on to note that it did not find the story of
       defendant’s family to be “plausible” and that “The brother’s version of the event was a little bit
       different than [the mother’s].” Ultimately, the court opined:
                   “One point I wanted to identify specifically is the mother indicated that they asked
               for Edwin through the door, on the outside of the door and then she opened it. It’s kind
               of moot. I really believe that Payton requires that the officers may not make an arrest
               within the home in the absence of an arrest warrant. I believe under New York v. Ferris,
               in his circumstance we have a violation of the defendant’s [c]onstitutional [r]ights that
               does not lead to the suppression of the evidence that was seized outside the home.
               That’s because the recovered evidence in this case was recovered from the defendant’s
               person after the arrest in the home. Therefore, the evidence will not be suppressed.”
¶ 14       The case then proceeded to a bench trial.

¶ 15                                             Bench Trial
¶ 16       Defendant waived his right to a jury trial, and his bench trial proceeded immediately
       following the hearing on the motion to quash arrest and suppress evidence on May 6, 2014.
       The parties stipulated to the admission of the testimony given by Ruben, Bonita, and Officer
       Brouder at the suppression hearing.
¶ 17       The State additionally called Officer T. Silder, 1 who testified that on the evening in
       question, he and his partner, Officer Brouder, “were going to look for a named offender in an
       armed robbery case.” He stated that the named offender was “Edwin Garcia.” Officer Silder
       specifically stated that he and his partner went to defendant’s home, located at 4151 West 78th
       Place in Chicago, and, “We knocked on the door. We were met by another person who turned
       out to be a family member and we were let inside.” The officer testified that the person who
       opened the door was male. They then asked for defendant. Officer Silder testified that he could
       not recall if defendant was “right there” or if someone had to go get him. Thereafter, defendant

          1
           Officer Silder’s first name does not appear in the record on appeal.

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       was placed in custody in the living room. Officer Silder testified that he had identified himself
       as a police officer before entering the house. He further stated that after exiting the home, but
       before placing defendant in their vehicle, he performed a search of defendant and recovered a
       six-shot .32 caliber revolver handgun. Officer Silder indicated that the recovered handgun was
       approximately four to five inches in length. He further stated that, “Once we were in the
       vehicle after Miranda, he said he carries the gun for protection because his house just got shot
       up.” On cross-examination, Officer Silder testified that he did not search defendant while in
       the house. Also, he confirmed that the handgun was already in defendant’s pocket when the
       officers walked him outside.
¶ 18       The State introduced defendant’s birth certificate into evidence, which indicated that he
       was born on June 12, 1995, and then rested its case. The defense then made a motion for
       directed finding, which was denied.
¶ 19       For the defense’s case-in-chief, defendant testified on his own behalf. He stated that on
       January 27, 2013, he was in his bedroom when he heard his mother and brothers screaming his
       name. Not knowing the police were there, he went into the living room and was arrested.
       Defendant testified that the officers first searched him and then placed him in handcuffs.
       Defendant admitted to having a gun in his pocket when he left the bedroom because, he stated,
       “I heard shouting and I got paranoid because I got bullet holes that’s all over through my
       windows.” Defendant stated that the officers did not find anything on him in the house because
       his pants sagged. He further stated that his girlfriend tried to remove the gun from his pocket
       after the police placed him in handcuffs, but defendant told her to stop because the police were
       watching. Defendant testified that when the officers walked him down the stairs, they asked
       what his girlfriend was grabbing in his pocket. He stated that once he was by the officers’
       vehicle, one of the officers went through his pockets and pulled the gun out. Defendant told the
       officers it was for protection.
¶ 20       During closing arguments, the defense argued that defendant was engaged in lawful
       activity by possessing a gun in his own home for protection, because the statute under which
       defendant was charged does not apply to recreational activity with firearms, such as, but not
       limited to, shooting at targets, hunting, fishing, or trapping. Defense counsel argued that
       defendant’s conduct fell under the “but not limited to” portion of the statute. The State argued
       that the law does not allow anyone under the age of 18 to possess a gun in the home. The State
       asserted that the officers did not go into defendant’s home looking for the gun but instead went
       in based on probable cause because defendant was named in an armed robbery. The State
       pointed out that defendant had admitted to every element of the crime.
¶ 21       The court ultimately found defendant guilty, stating:
                    “I don’t know what redress [defendant] could have hoped for. There’s some
               indication that he could have been using [the gun] to protect himself. I don’t find that
               he falls within the exceptions enumerated under the UUW statute. I’ve already
               indicated they couldn’t go into the house and arrest him, but by the defendant’s own
               admission now, the gun recovered on the outside was already in his pocket. There will
               be a finding of guilty.”
¶ 22       On May 30, 2014, defendant filed a motion for a new trial, arguing, inter alia, that the court
       erred in denying defendant’s pretrial motion to quash arrest and suppress evidence. On that
       same date, the court denied defendant’s motion for new trial and sentenced defendant to two
       years’ intensive probation.

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¶ 23      Defendant filed his timely notice of appeal on June 24, 2014.

¶ 24                                           ANALYSIS
¶ 25      On appeal, defendant contends the trial court erred in denying his motion to quash arrest
       and suppress evidence because the evidence was obtained through exploitation of the illegal
       warrantless arrest within his home and is therefore subject to the exclusionary rule. Defendant
       asks this court to reverse his conviction outright. In the alternative, defendant argues that his
       counsel was ineffective in failing to impeach Officer Brouder’s testimony that he received
       consent to enter defendant’s home.

¶ 26                         Motion to Quash Arrest and Suppress Evidence
¶ 27       The fourth amendment to the United States Constitution ensures “[t]he right of the people
       to be secure in their persons, houses, papers, and effects, against unreasonable searches and
       seizures.” U.S. Const., amend. IV. We apply a two-part standard of review when reviewing a
       ruling on a motion to quash arrest and suppress evidence. People v. Grant, 2013 IL 112734,
       ¶ 12. “While we accord great deference to the trial court’s factual findings, and will reverse
       those findings only if they are against the manifest weight of the evidence, we review de novo
       the court’s ultimate ruling on a motion to suppress involving probable cause.” Id.
¶ 28       A defendant bears the burden of proof on a motion to suppress evidence. People v. Cregan,
       2014 IL 113600, ¶ 23. “If the defendant makes a prima facie showing that the evidence was
       obtained in an illegal search or seizure, the burden shifts to the State to provide evidence to
       counter the defendant’s prima facie case.” Id. However, the ultimate burden of proof lies with
       the defendant. Id.
¶ 29       Defendant argues that the trial court erred in denying his motion to quash arrest and
       suppress evidence because the handgun recovered from his pocket was only recovered through
       “exploitation of the illegality” of the police officers’ unconstitutional entry into his home. In
       response, the State asserts that the trial court properly denied defendant’s motion to suppress
       where the arresting officer had probable cause to arrest defendant and where the evidence was
       recovered outside of defendant’s home.
¶ 30       In Payton v. New York, 445 U.S. 573, 602-03 (1980), the United States Supreme Court held
       that warrantless entry by police officers into a defendant’s residence to make a routine felony
       arrest in the absence of consent or exigent circumstances violated the defendant’s fourth
       amendment right to be free from unreasonable search and seizure. Ten years later, in New York
       v. Harris, 495 U.S. 14, 16 (1990), the Court again addressed the warrantless entry of police
       officers into a defendant’s home, examining the issue of whether a statement made by a
       defendant outside of the home should have been suppressed because the police, by entering
       defendant’s home without a warrant and without consent, violated Payton. The Court
       concluded that the defendant’s statement should not be suppressed even though arresting the
       defendant in his home without a warrant was a violation of Payton because “the rule in Payton
       was designed to protect the physical integrity of the home; it was not intended to grant criminal
       suspects, like Harris, protections for statements made outside their premises where the police
       have probable cause to arrest the suspect for committing a crime.” Id. at 17.
¶ 31       Defendant does not dispute that the police had probable cause to effectuate his arrest.
       Rather, he argues that suppression is proper because the recovered handgun was obtained


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       through “exploitation of the illegality” of the officers’ decision to illegally enter defendant’s
       home and therefore should have been suppressed. See Hudson v. Michigan, 547 U.S. 586, 592
       (2006) (the relevant question is “ ‘whether, granting establishment of the primary legality, the
       evidence to which instant objection is made has been come at by exploitation of that illegality
       or instead by means sufficiently distinguishable to be purged of the primary taint’ ” (quoting
       Wong Sun v. United States, 371 U.S. 471, 488 (1963))).
¶ 32       The State primarily relies on People v. Alexander, 212 Ill. App. 3d 1091 (1991), and
       People v. Houston, 240 Ill. App. 3d 754 (1992), as support for its position. In Alexander, this
       court first addressed the Supreme Court’s decision in Harris and reiterated the Harris holding
       that “ ‘where the police have probable cause to arrest a suspect, the exclusionary rule does not
       bar the State’s use of a statement made by the defendant outside of his home, even though
       [that] statement is taken after an arrest made in the home in violation of Payton,’ ” because “as
       long as the police have probable cause for holding the suspect in custody, such statements are
       neither ‘the product of being in unlawful custody *** [nor] the fruit of having been arrested in
       the home rather than someplace else.’ ” Alexander, 212 Ill. App. 3d at 1104 (quoting Harris,
       495 U.S. at 19). This court went on to decide that although Harris only referred to statements
       obtained outside the home, “we see no reason why the rule it enunciates should not apply as
       well to other evidence obtained outside the home, as the argument for excluding statements
       was that they were the fruits of an illegal arrest rather than that there was some basis for
       distinguishing between statements and other evidence.” (Internal quotation marks omitted.) Id.
       As a result, this court held that because the defendant did not deny the existence of probable
       cause for his arrest, the trial court did not err in admitting the evidence obtained from the
       defendant away from his home after his arrest. Id. at 1104-05.
¶ 33       In Houston, the defendant argued that a lineup identification was obtained as the product of
       a warrantless entry into his home and should be barred under the exclusionary rule even if the
       officers had probable cause for his arrest. Houston, 240 Ill. App. 3d at 759-60. Recognizing
       that the Harris rule regarding statements had been applied to other evidence obtained outside
       the home, the court disagreed with the defendant’s argument and held that where probable
       cause existed, “the court did not err in admitting evidence of the lineup identification even
       though the defendant was arrested without a warrant.” Id. at 760.
¶ 34       Defendant argues that the decisions in Alexander and Houston are “likely inconsistent with
       Harris,” as they depend on the conclusion that a lineup identification or fingerprint
       identification was obtained outside the home, where in each case the defendant was arrested
       inside the home. We do not find defendant’s argument convincing because both Alexander and
       Houston were decided after Harris and relied on Harris in reaching their holdings. In the
       alternative, defendant argues that even assuming these two cases were correctly decided, they
       are distinguishable because both dealt with evidence that “consisted of the defendant’s
       body—his appearance and his fingerprints—rather than personal property.” Defendant does
       not point to, and we have not found, any support for the proposition that whether evidence
       should be suppressed in such a situation turns on the relatedness of the evidence to a
       defendant’s body. We agree with defendant that Harris requires the suppression of “the fruit
       having been arrested in the home rather than someplace else.” Harris, 495 U.S. at 19.
       However, neither this court nor our supreme court has interpreted this to signify that the test
       defendant proposes is proper. Rather, this court has previously recognized, on at least two
       occasions, that the rule from Harris regarding statements has been applied to other evidence


                                                   -7-
       obtained outside the home, even going so far as to say that “we see no reason why the rule
       [Harris] enunciates should not apply as well to other evidence obtained outside the home.”
       Alexander, 212 Ill. App. 3d at 1104.
¶ 35       Defendant further relies on the holding from Harris, which stated, “For Fourth
       Amendment purposes, the legal issue is the same as it would be had the police arrested [the
       defendant] on his doorstep, illegally entered his home to search for evidence and later
       interrogated [the defendant] at the station house.” Harris, 495 U.S. at 18. However, what
       defendant misses is that the facts of the case at bar mirror those of Harris. Here, if the officers
       would have arrested defendant on his doorstep and then illegally searched for evidence, the
       result would have been the same because the gun was in defendant’s pocket. Thus, like in
       Harris, because the officers had probable cause, defendant was not unlawfully in custody
       when he was removed from his home and searched before being placed into the officers’
       vehicle. See id. (“Because the officers had probable cause to arrest [the defendant] for a crime,
       [the defendant] was not unlawfully in custody when he was removed to the station house,
       given Miranda warnings, and allowed to talk.”).
¶ 36       We likewise find unconvincing the cases upon which defendant relies: People v. Spicer,
       163 Ill. App. 3d 81 (1987), and People v. Santovi, 2014 IL App (3d) 130075. First, we find
       Spicer to be of inadequate support for defendant’s position because it was decided three years
       prior to Harris. Further, we find Santovi to be unconvincing because that case does not involve
       an issue similar to the one at bar. In Santovi, the State appealed the trial court’s decision to
       grant suppression where, although the officers’ initial entry into defendant’s home was
       consensual, the defendant was effectively under arrest at the time the officer threatened to kick
       down the bathroom door. Id. ¶ 4. Additionally, the Santovi decision does not mention the
       Harris case or its progeny, which are crucial to the case at bar.
¶ 37       As a result, we find the cases cited by the State to be more convincing. Here, defendant,
       like the defendant in Alexander, does not dispute that probable cause existed for his arrest.
       Thus, according to Alexander and Houston, we find that where officers had probable cause to
       effectuate defendant’s arrest, and while their entry into his home to do so was unlawful under
       Payton, the evidence recovered outside his home is not required to be suppressed. The trial
       court properly denied defendant’s motion to quash arrest and suppress evidence.

¶ 38                                  Ineffective Assistance of Counsel
¶ 39        In the alternative, defendant argues that assuming the trial court had found that the police
       received permission to enter defendant’s home, and even assuming such a finding would not be
       contrary to the manifest weight of the evidence, reversal would be required. In response, the
       State points out that the trial court did not make a finding that the officers received permission
       to enter defendant’s home and asserts that defendant’s request that this court “assume” that the
       trial court found facts that it did not is improper. We agree with the State.
¶ 40   As our supreme court has consistently recognized, “Courts of review will generally not decide
       questions which are abstract, hypothetical, or moot.” In re James W., 2014 IL 114483, ¶ 18.
       Similarly, Illinois courts do not render advisory opinions. See In re Alfred H.H., 233 Ill. 2d
       345, 351 (2009).
¶ 41        Here, both parties agree that the trial court did not make a finding that the police received
       permission to enter defendant’s home. Thus, we decline to examine whether defendant’s
       counsel would have been rendered ineffective for failing to impeach Officer Brouder with his

                                                    -8-
       arrest report, because there is no evidence in the record, and the parties do not suggest, that the
       trial court made a finding regarding permissive entry that would allow us to review such an
       issue. Specifically, in his reply brief, defendant states that “the State concedes that the trial
       court did not find that the police had consent to enter [defendant’s] home prior to his arrest.
       Given that concession, [defendant’s] claim in the alternative is beside the point.” This
       statement by defendant, coupled with the fact that we do not render advisory opinions or make
       decisions based upon hypotheticals, renders our review of defendant’s alternative issue
       unnecessary. See In re James W., 2014 IL 114483, ¶ 18; In re Alfred H.H., 233 Ill. 2d at 351.

¶ 42                                       CONCLUSION
¶ 43      Based on the foregoing, we find that the trial court properly denied defendant’s motion to
       quash arrest and suppress evidence. Therefore, we affirm the judgment of the circuit court.

¶ 44      Affirmed.




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