                                  Illinois Official Reports

                                          Appellate Court



                               People v. Fort, 2014 IL App (1st) 120037




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



District & No.               First District, Third Division
                             Docket No. 1-12-0037



Filed                        April 30, 2014
Rehearing denied             May 21, 2014


Held                         Defendant’s conviction for possession of cocaine was reversed and the
(Note: This syllabus         cause was remanded for further proceedings, where the trial court
constitutes no part of the   erred in refusing to suppress defendant’s response to an officer’s
opinion of the court but     question in the course of the execution of a search warrant as to
has been prepared by the     whether she had anything in her bedroom the police should know
Reporter of Decisions        about, since defendant was in custody at the time, the officer did not
for the convenience of       advise her of her Miranda rights before asking the question, and the
the reader.)
                             prosecution failed to present evidence beyond a reasonable doubt that
                             the error had no prejudicial effect.




Decision Under               Appeal from the Circuit Court of Cook County, No. 10-CR-243; the
Review                       Hon. John T. Doody, Jr., Judge, presiding.



Judgment                     Reversed and remanded.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Brian E. Koch, all of State
     Appeal                   Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Mary P. Needham, and Marci Jacobs, Assistant State’s Attorneys, of
                              counsel), for the People.




     Panel                    JUSTICE NEVILLE delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Hyman concurred in the judgment and opinion.
                              Justice Mason dissented, with opinion.




                                               OPINION

¶1         After a bench trial, the trial court found Tashawnda Fort guilty of possessing cocaine. On
       appeal, Fort contends that the trial court should have granted her motion to suppress evidence
       of statements she made to police before police reminded her of her right not to answer
       questions. We find that police obtained the evidence by means of a custodial interrogation
       conducted without Miranda warnings, and therefore, the trial court should have granted the
       motion to suppress. Because we find the error prejudicial, we reverse and remand for further
       proceedings in accord with this opinion.

¶2                                           BACKGROUND
¶3         On November 17, 2009, police obtained a warrant to search a home on the west side of
       Chicago and Samuel Kirk, who police expected to find in the home, for cocaine and
       paraphernalia related to cocaine trafficking. Two days later, around 10:30 a.m., Chicago police
       officer Roberto Delcid and other officers, with guns drawn, forcibly entered the home listed on
       the search warrant. Inside they found Kirk and several other persons, including Fort. At some
       point, Delcid escorted Fort upstairs and asked her a question without first telling her about her
       Miranda rights. Delcid found 47 packets of cocaine in a pillowcase in a room upstairs. Police
       took Fort into custody and charged her with possession of cocaine with intent to distribute.
¶4         Fort moved to suppress evidence of any statements she made in response to the questions
       Delcid asked when he escorted her upstairs. At the hearing on the motion, Delcid testified that
       after police gathered most persons in the residence into the living room, under police guard,
       Fort asked Delcid if he would permit her to get her baby from her bedroom, rather than leaving
       the baby unattended while the officers executed the search warrant. Delcid testified that he
       asked his supervisor whether “it was okay to go up there and retrieve the baby.” When he
       escorted Fort to the bedroom door and saw the baby in the room, he asked Fort “if there [was]


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       anything in the room [police] should know about because the room eventually is going to get
       searched anyway.” She told him she had some cocaine inside the pillowcase on her bed.
¶5          Fort’s account of the encounter disagreed with Delcid’s in many respects. The trial court
       found Delcid more credible and held that Delcid did not subject Fort to custodial interrogation.
       The court permitted Delcid to testify at the trial that Fort told him about the narcotics in the
       pillowcase on her bed.
¶6          At the bench trial, Delcid testified that in the bedroom where he found the cocaine in the
       pillowcase, he also found Fort’s state identification card, a pharmacy receipt for Fort, and a
       letter addressed to Fort. Police systematically searched the entire residence.
¶7         The trial court held that the prosecution had not proven an intent to distribute the cocaine,
       so the court found Fort guilty of only possession. The court sentenced Fort to 24 months’
       probation and the payment of $1,170 in fees and fines. Fort now appeals.

¶8                                               ANALYSIS
¶9         Fort raises only one issue on appeal. She contends that the trial court should have granted
       her motion to suppress testimony about her response to Delcid’s question, which he asked
       without giving any Miranda warnings.
¶ 10       The parties agree on the applicable standards. We defer to the trial court’s findings of fact.
       People v. Slater, 228 Ill. 2d 137, 149 (2008). Fort does not contest those findings. We review
       de novo the ruling permitting the State to introduce into evidence testimony about Fort’s
       statements, taking as true the testimony the trial court found credible. Slater, 228 Ill. 2d at 149.
       The dissent accuses us of sidestepping a credibility issue. But on this appeal, Fort accepts the
       facts on which the trial court relied when it denied her motion to suppress statements. The
       dissent seeks to use the trial court’s credibility determination to distract from the legal issue the
       appeal presents and to besmirch Fort as someone the trial court found not credible.
¶ 11       “The prosecution may not use statements of the defendant stemming from custodial
       interrogation unless Miranda warnings have been given.” People v. Maiden, 210 Ill. App. 3d
       390, 394 (1991). “[A] person being questioned by law enforcement officers must first ‘be
       warned that he has a right to remain silent, that any statement he does make may be used as
       evidence against him, and that he has a right to the presence of an attorney, either retained or
       appointed,’ as long as that person has been ‘taken into custody or otherwise deprived of his
       freedom of action in any significant way.’ ” Slater, 228 Ill. 2d at 149 (quoting Miranda v.
       Arizona, 384 U.S. 436, 444 (1966)).
¶ 12       The State claims that Delcid did not engage in custodial interrogation of Fort, in that police
       did not have Fort in custody at the time of the question, and the question qualifies as a
       preliminary question at the scene, and not as interrogation.
¶ 13       To determine whether police have taken a defendant into custody, the trial court must
       decide whether a reasonable person in the defendant’s circumstances “would have felt he or
       she was not at liberty to terminate the interrogation and leave.” People v. Braggs, 209 Ill. 2d
       492, 506 (2003). The court should consider “(1) the location, time, length, mood, and mode of
       the questioning; (2) the number of police officers present during the interrogation; (3) the
       presence or absence of family and friends of the individual; (4) any indicia of a formal arrest
       procedure, such as the show of weapons or force, physical restraint, booking or fingerprinting;



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       (5) the manner by which the individual arrived at the place of questioning; and (6) the age,
       intelligence, and mental makeup of the accused.” Slater, 228 Ill. 2d at 150.
¶ 14        The questioning here took place in Fort’s home, at her bedroom door, and it took very little
       time. Only Officer Delcid heard Fort’s answer, but other officers filled the house. Fort’s family
       and friends were nearby, but not with Fort at the time of questioning. Police made a
       considerable show of force as several officers forcibly entered the home with guns drawn and
       rounded up most of the home’s inhabitants into the living room. Fort asked permission to
       retrieve her baby, and Delcid asked his supervisor before permitting Fort to go to her bedroom
       with a police officer closely watching her. No evidence indicates any intellectual deficiencies
       made Fort, an adult, especially vulnerable.
¶ 15        In view of the sequestering of Fort in the living room under armed police guard, Fort’s
       need to request permission to attend to her baby, Delcid’s need for a supervisor’s approval of
       the request, and Fort’s retrieval of her baby under police supervision, we find that a reasonable
       person in Fort’s position, innocent of any crime, would not believe she could simply refuse to
       answer the question and leave the encounter to retrieve her baby. Police had deprived Fort of
       freedom of action in a very significant way, by restricting her ability to attend to her baby.
       Accordingly, under the standards enunciated in Slater, we find that police had Fort in custody
       when Delcid asked her whether there was anything in her room police should know about.
¶ 16        The dissent disagrees, and finds that Fort was “clearly not ‘in custody,’ ” without applying
       the standards set out in Slater, Braggs, and Miranda for determining whether police have taken
       custody of a person. The dissent does not dispute our conclusion that a reasonable innocent
       person in Fort’s situation would not believe she could refuse to answer the officer’s question
       and leave the encounter to retrieve her baby. Neither does the dissent offer any authority that
       would permit this court to ignore the test set out in Slater, Braggs, and Miranda. Under the
       Slater, Braggs, and Miranda test, police had custody of Fort when Delcid questioned her.
¶ 17        The State argues that the question does not amount to interrogation. Police do not violate
       constitutional rights when they ask normal, ordinary questions at the scene of an encounter
       with civilians. People v. Stansberry, 47 Ill. 2d 541, 548 (1971). But a question at the scene
       counts as impermissible interrogation if it is reasonably likely to elicit an incriminating
       response. People v. Olivera, 164 Ill. 2d 382, 391-92 (1995).
¶ 18        Delcid testified that he asked Fort whether police should know about anything in the room
       only for security purposes, because he feared that Fort might have guns in the room. But
       instead of asking about weapons, he asked a question which applied to any contraband police
       might find. The dissent ignores Delcid’s testimony that he asked Fort “if there [was] anything
       in the room [police] should know about because the room eventually is going to get searched
       anyway.” The question asks for anything in Fort’s room that might interest police, when police
       were executing a warrant to search for narcotics. Delcid candidly admitted that he did not limit
       the scope of his question to weapons. A question as to whether a defendant has contraband
       qualifies as interrogation, likely to elicit an incriminating response. See People v. Elliot, 314
       Ill. App. 3d 187, 190 (2000). We hold that the facts found by the trial court show that Delcid
       engaged in an impermissible custodial interrogation of Fort when, after police forcibly entered
       her home with guns drawn and gathered most of the persons there into one room, and allowed
       Fort to attend to her baby only with a police supervisor’s permission and with a police escort,
       Delcid asked Fort if police should know about anything she had in her bedroom, because


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       police would find it eventually in the search. Accordingly, the trial court erred when it denied
       Fort’s motion to suppress evidence of statements she made in response to the question.
¶ 19       The State also argues that we should affirm the conviction despite the error, because the
       evidence apart from the statement overwhelmingly proved Fort guilty. “Because constitutional
       rights as enunciated in Miranda are in issue, for this error to be harmless, it would have to be
       harmless beyond a reasonable doubt.” People v. Szerletich, 86 Ill. App. 3d 1121, 1129 (1980).
       Our supreme court has held that the erroneous admission of a confession into evidence is rarely
       harmless error, because confessions have such strong persuasive force. People v. St. Pierre,
       122 Ill. 2d 95, 114 (1988).
¶ 20       Fort does not contest the State’s contention that even without the confession, police would
       have found the cocaine in the bedroom with Fort’s state identification card, a prescription in
       her name, a letter addressed to her, and her baby. However, the evidence shows that others had
       access to Fort’s room, and some adults were upstairs near Fort’s bedroom when police forcibly
       entered. Without the confession, Fort’s attorney might have persuasively argued that other
       persons in the home involved with narcotics may have tried to hide some cocaine in Fort’s
       room when they heard police entering.
¶ 21       In assessing whether we can consider the trial court’s error harmless beyond a reasonable
       doubt, the dissent shifts the burden to Fort. The dissent finds “no evidence that Fort shared her
       bedroom with anyone but her baby,” when the record also has no evidence that Fort had
       exclusive use of the bedroom or the bed. Infra ¶ 39. The State introduced no medical evidence
       to show that the adult left upstairs during the search was either ill or bedridden. Neither party
       presented evidence of where in the home all the adults were when police knocked and
       announced their office.
¶ 22       The dissent points to the evidence the State introduced in an effort to show that Fort
       intended to distribute the cocaine. Fort had the nickname “Lips,” and the State presented
       evidence that some baggies discovered in the search bore a lips logo. The trial court expressly
       did not believe that police found the lips logo on the narcotics found in the pillowcase. Delcid
       also testified that he found $1,500 in cash in a purse Fort claimed as her own. The trial court
       found that evidence insufficient to convict Fort on the charge of intent to distribute. The
       evidence has little bearing on the possession charge. We find that the State has not shown
       beyond a reasonable doubt that the erroneous admission of Fort’s confession into evidence did
       not affect the outcome of the trial.

¶ 23                                        CONCLUSION
¶ 24       Officer Delcid custodially interrogated Fort when he asked her, outside her bedroom,
       whether she had anything in her room police needed to know about. Because he did not advise
       her of her Miranda rights before asking that question, the trial court should have suppressed
       evidence of Fort’s response. The State failed to show beyond a reasonable doubt that the error
       had no prejudicial effect. Accordingly, we reverse the conviction and remand for further
       proceedings in accord with this opinion.

¶ 25      Reversed and remanded.




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¶ 26        JUSTICE MASON, dissenting.
¶ 27        I cannot reconcile the majority’s decision with the well-settled standards applicable to
       credibility determinations and factual findings made by trial courts and, for that reason, I
       dissent.
¶ 28        When we review a trial court’s ruling on a motion to suppress, we accord “great deference”
       to the trial court’s factual findings and will reverse them only if they are contrary to the
       manifest weight of the evidence. People v. Murdock, 2012 IL 112362, ¶ 29. “This deferential
       standard is grounded in the reality that the circuit court is in a superior position to determine
       and weigh the credibility of the witnesses, observe the witnesses’ demeanor, and resolve
       conflicts in their testimony.” People v. McDonough, 239 Ill. 2d 260, 266 (2010). This court
       may not substitute its judgment for that of the trier of fact as to the credibility of witnesses and
       will not set aside a criminal conviction unless the evidence is so improbable or unsatisfactory
       as to create a reasonable doubt regarding defendant’s guilt. People v. Siguenza-Brito, 235 Ill.
       2d 213, 224-25 (2009).
¶ 29        Fort’s motion to suppress presented the trial court with a classic credibility determination.
       Officer Delcid testified that after police entered the premises in the course of executing a
       search warrant, Fort requested to go upstairs and retrieve her baby, who was sleeping on the
       bed in her room. Prior to entering the room, which had not yet been searched or cleared of any
       weapons, Delcid asked Fort if there was anything in the room he should know about, at which
       point Fort told him there was some “work” in a pillowcase on the bed. At the suppression
       hearing however, Fort testified that (1) she and her baby were downstairs when the police
       arrived, (2) she never requested to go upstairs, (3) Delcid singled her out and made her come
       upstairs with him, (4) there were no drugs in her bedroom and (5) she never admitted to Delcid
       that there were drugs in her bedroom. In other words, Fort’s contention was that Delcid’s story
       was entirely fabricated. After hearing the evidence and observing the two witnesses who
       testified, the trial judge believed Delcid and disbelieved Fort.
¶ 30        Sidestepping this credibility determination, the majority instead concludes that even
       crediting Delcid’s version of events, his single question of Fort prior to entering the bedroom
       amounted to a custodial interrogation and that because Fort was not given Miranda warnings,
       her statement to Delcid must be suppressed. The majority cites no authority that compels this
       conclusion as a matter of law.
¶ 31        The officers in this case were executing a valid search warrant supported by probable cause
       and after making on-the-scene observations of drug transactions taking place outside the
       premises that morning. The target of the warrant was Samuel Kirk, who was present in the
       residence and who was handcuffed after the officers entered. In contrast, neither Fort nor
       anyone else present that morning was suspected of any criminal activity. Although they were
       gathered in the living room for their own and the officers’ safety after the warrant was executed
       and while the search of the premises was completed, they were clearly not “in custody” since
       they were not suspected of or charged with any wrongdoing.
¶ 32        Custody is what triggers the applicability of Miranda pre-interrogation admonishments.
       See People v. Slater, 228 Ill. 2d 137, 149-50 (2008) (recognizing that Miranda warnings were
       designed to ensure that any inculpatory statement made by a defendant is not due to
       “ ‘ “compulsion inherent in custodial surroundings” ’ ” (quoting Yarborough v. Alvarado, 541
       U.S. 652, 661 (2004), quoting Miranda, 384 U.S. at 458)). Accordingly, it is well recognized
       that Miranda is not triggered, and admonishments are not required, when police conduct

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       general investigatory on-the-scene questioning. People v. Parks, 48 Ill. 2d 232, 237 (1971).
       That is because “[i]n such situations the compelling atmosphere inherent in the process of
       in-custody interrogation is not necessarily present.” Miranda v. United States, 384 U.S. 436,
       478 (1966). Miranda warnings are required in the context of individuals in police custody who
       are suspected or accused of crimes. Here, according to the undisputed evidence, Fort was
       neither suspected nor accused of anything.
¶ 33       The majority emphasizes that officers entered the premises with “guns drawn.” This,
       standing alone, is an insufficient basis upon which to predicate a finding that everyone present
       in the premises was in custody and that every question asked of any of the occupants amounted
       to a custodial interrogation. The evidence showed that when officers knocked on the door and
       announced their office, there was no response. At that point, forced entry was justified. Given
       the probable cause to believe that a suspected drug dealer and drug paraphernalia would be
       found in the residence, officers were likewise justified in displaying weapons upon entry. But
       there is no evidence that once Kirk was handcuffed and the remaining occupants were gathered
       in the living room, officers continued to display weapons.
¶ 34       The majority also emphasizes that Fort was only permitted to go upstairs after Delcid
       requested permission from his sergeant to accompany her and then only in Delcid’s presence.
       Again, the fact that officers took reasonable precautions before allowing an occupant of the
       premises to go into a room that had not been searched or cleared of weapons does not translate
       into a finding that Fort was in custody.
¶ 35       There is likewise no basis in the record to conclude that Delcid’s single question was
       designed to elicit incriminating evidence from Fort. See Missouri v. Seibert, 542 U.S. 600,
       615-16 (2004) (arresting officer admitted that he deliberately withheld Miranda warnings and
       employed a question-first, admonish-later interrogation technique). In fact, Delcid’s testimony
       that the question he asked of Fort was designed to insure his own safety and the safety of others
       is uncontradicted. Delcid consistently and repeatedly testified that his question to Fort was
       motivated by his concern for his own safety and that of other officers. (“She [Fort] is not going
       to go into a room that hasn’t been cleared of any weapons or type of instruments that could
       harm police officers”; “I asked her if there was anything in the room for my safety and the
       safety of other officers.”) Fort’s testimony at the suppression hearing was that the encounter
       with Delcid never took place and that she never made a statement incriminating herself. While
       the trial court was not obligated to accept Delcid’s testimony regarding his motivation for
       asking Fort if there was anything he should know about prior to entering her bedroom, the trial
       judge was certainly in the best position to determine whether Delcid was telling the truth.
       There is no basis in the record to second-guess this assessment.
¶ 36       The majority simply overlooks the trial court’s credibility determination on this issue.
       Focusing on the fact that Fort was not free to leave or able to avoid answering Delcid’s
       question, the majority concludes, analyzing the relevant factors under Slater and Braggs, that
       she was “in custody.” But even assuming that to be the case, Fort was not subject to
       “interrogation” by Delcid. His single question–interpreted by the trial court to be directed to
       officer safety–was not designed to elicit an incriminating statement. If an incriminating
       statement is not made during the course of police “interrogation,” the analysis under Slater and
       Braggs is irrelevant.
¶ 37       In fact, Delcid had no motive to attempt to get Fort to incriminate herself. The subject of
       the warrant was in custody. The officers were authorized to and did search the entire premises,

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       including Fort’s bedroom. They did not need any of the occupants to tell them where drugs
       were located. And if they were inclined to take shortcuts, it would stand to reason that they
       would have asked all of the occupants to tell them where the drugs were (including Fort’s sister
       and codefendant, Jimece, in whose bedroom drugs were also found), but no such evidence was
       presented. At bottom, the majority concludes that Delcid, asked by Fort to allow her to go
       upstairs to get her baby, decided to use the opportunity to interrogate her. I cannot agree with
       this gloss on the evidence.
¶ 38        I also cannot agree with the majority’s harmless error analysis. People v. Wrice, 2012 IL
       111860, ¶ 71 (recognizing that under Arizona v. Fulminante, 499 U.S. 279 (1991),
       confessions, other than those obtained by physical coercion, are subject to harmless error
       analysis). Although the majority acknowledges that even without Fort’s confession, police
       would have found the drugs, Fort’s identification card, other documents with her name on
       them and her baby in the bedroom, my colleagues conclude that such evidence was offset by
       the fact that others had access to Fort’s room and “some adults were upstairs near Fort’s
       bedroom when police forcibly entered.” Supra ¶ 29. I have searched the record and cannot find
       any support for the latter statement. In fact, at Fort’s trial, her sister, Jimece, testified that from
       the time she entered the residence with police no one other than police officers went upstairs.
       The only person who was upstairs during the search was the sisters’ elderly grandfather, who
       was permitted to remain upstairs either because he was ill or was bedridden.
¶ 39        Moreover, “[c]onstructive possession of narcotics exists without actual physical dominion
       over the narcotics but where there is an intent and a capacity to exercise control and dominion
       over them. [Citation.] Habitation in or rental of the premises where narcotics are discovered is
       sufficient evidence of control to constitute constructive possession.” People v. Cunningham,
       309 Ill. App. 3d 824, 828 (1999). The State need not prove that defendant had exclusive
       dominion and control over the room where the drugs are found. People v. Givens, 237 Ill. 2d
       311, 335 (2010) (“The rule that possession must be exclusive does not mean, however, that the
       possession may not be joint.”); see also People v. Schmalz, 194 Ill. 2d 75, 82 (2000) (“[I]f two
       or more persons share immediate and exclusive control or share the intention and power to
       exercise control, then each has possession [citation].”). Here the narcotics were found in a
       pillowcase, on a bed in the bedroom occupied by Fort. There is no evidence that Fort shared
       her bedroom with anyone but her baby and, therefore, the fact that other adults resided in the
       premises would not be enough to call into question a conviction for possession of a controlled
       substance found in Fort’s bedroom.
¶ 40        Finally, the majority does not mention other evidence in the record that provides strong
       support for upholding Fort’s conviction, even if her incriminating statement is not considered.
       At the suppression hearing, Fort claimed Delcid called her by her nickname, “Lips.” “Lips” is
       listed as Fort’s nickname on her arrest report. The drugs found in the pillowcase on Fort’s bed
       were packaged in individual baggies embossed with a lips logo. Further, after the drugs were
       found and Fort was arrested, she asked Delcid if she could give her purse, sitting on the living
       room floor, to her father. Before giving the purse to Fort’s father, Delcid looked inside and
       found $1,500 in cash in loose bills rubber-banded together. While the trial court declined to
       convict Fort of possession of a controlled substance with intent to deliver, this additional
       evidence provides further support to affirm her conviction for possession of the drugs found in
       her bedroom.



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¶ 41       In light of the foregoing overwhelming evidence, just as Delcid did not need Fort to
       incriminate herself, Fort’s incriminating statement is not necessary to sustain her conviction. I
       would affirm.




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