                                   2017 IL App (1st) 142141
                                        No. 1-14-2141

                                                                             FIRST DIVISION
                                                                                March 6, 2017

                                         IN THE

                              APPELLATE COURT OF ILLINOIS

                                FIRST JUDICIAL DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS,               )
                                                   )       Appeal from the
                                                   )       Circuit Court of Cook County.
       Plaintiff-Appellee,                         )
                                                   )
       v.                                          )       13 CR 3129
                                                   )
EDWIN GARCIA,                                      )
                                                   )       Honorable Nicholas Ford,
       Defendant-Appellant.                        )       Judge Presiding.
                                                   )


       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
No. 1-14-2141


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



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No. 1-14-2141


“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 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



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No. 1-14-2141


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, who 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



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No. 1-14-2141


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 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.




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

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No. 1-14-2141


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

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



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No. 1-14-2141


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



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same date, the court denied defendant’s motion for new trial and sentenced defendant to two

years’ intensive probation.

¶ 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.



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¶ 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

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



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No. 1-14-2141


(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



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No. 1-14-2141


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 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.




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No. 1-14-2141


¶ 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,



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No. 1-14-2141


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 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



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No. 1-14-2141


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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