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Appellate Court Date: 2022.08.30
14:54:20 -05'00'
People v. Davis, 2021 IL App (3d) 180146
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MAURICE ANDREW DAVIS, Defendant-Appellant.
District & No. Third District
No. 3-18-0146
Filed August 27, 2021
Decision Under Appeal from the Circuit Court of Peoria County, No. 16-CF-191; the
Review Hon. Kevin W. Lyons, Judge, presiding.
Judgment Reversed.
Counsel on James E. Chadd and Thomas A. Karalis, of State Appellate Defender’s
Appeal Office, of Ottawa (William L. Breedlove, Breedlove Legal LLC, of
Moline, of counsel), for appellant.
Jodi Hoos, State’s Attorney, of Peoria (Patrick Delfino, Thomas D.
Arado, and Richard T. Leonard, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE WRIGHT delivered the judgment of the court, with opinion.
Justice Lytton concurred in the judgment and opinion.
Presiding Justice McDade specially concurred, with opinion.
OPINION
¶1 The defendant, Maurice Andrew Davis, was charged with unlawful possession of a weapon
by a felon and unlawful possession of a controlled substance. Prior to trial, defendant filed a
motion requesting the suppression of evidence seized due to the absence of probable cause
supporting the issuance of the search warrant. The trial court properly denied defendant’s
motion to suppress, but defendant’s convictions are reversed due to the insufficiency of the
State’s evidence pertaining to constructive possession.
¶2 I. BACKGROUND
¶3 On March 22, 2016, the State charged defendant by indictment with unlawful possession
of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2016)) (count I), alleging that on or about
March 10, 2016, defendant knowingly possessed a firearm, being a handgun, and had been
previously convicted of a felony offense in Peoria County case No. 10-CF-73. The State also
charged defendant with unlawful possession of a controlled substance (720 ILCS 570/402(c)
(West 2016)) (count II), alleging that on or about March 10, 2016, defendant knowingly and
unlawfully possessed a controlled substance containing cocaine.
¶4 A. Pretrial Suppression Proceedings
1
¶5 On May 10, 2017, defendant filed an amended motion to quash search and/or suppress
evidence (motion to suppress) requesting the suppression of evidence seized during the
execution of a search warrant at 1526 W. Smith Street, Peoria, Illinois, on or about March 9,
2016. Defendant argued that the search and seizure was unconstitutional because the complaint
for the search warrant (sworn complaint) was insufficient on its face and failed to establish
probable cause to search 1526 W. Smith Street, Peoria, Illinois. Defendant’s motion to suppress
alleged the sworn complaint failed to show a “nexus” between defendant and the address to be
searched. The allegations contained in the motion to suppress will be set forth in more detail
in the analysis to follow.
¶6 On May 10, 2017, the trial court conducted a hearing on defendant’s motion to suppress.
At the hearing, defendant rested his argument entirely on the information set forth in the sworn
complaint. The four-page sworn complaint, dated March 9, 2016, contained the information
summarized below. Police Sergeant John Matthew Briggs (complainant), who was employed
by the City of Peoria, received information from a confidential informant that defendant was
selling crack cocaine from multiple locations, including 1526 W. Smith Street in Peoria. After
viewing a photo array depicting several black males with similar facial characteristics,
including defendant’s photo, the informant identified defendant as the person selling crack
cocaine from 1526 W. Smith Street. As part of his investigation, complainant learned that
Monica Parker rented the residence at 1526 W. Smith Street.
¶7 According to the sworn complaint, the “ADSI report database” indicated that defendant
reported his home address to law enforcement as 2804 W. Humboldt Street in April 2015.
Monica Parker also resided at 2804 W. Humboldt Street in April 2015. However, the current
1
Defendant filed his original motion to suppress on April 17, 2017.
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resident of 2804 W. Humboldt Street stated that Parker was no longer residing there and had
not resided at that address since December 2015.
¶8 Complainant also averred that within the 72 hours before March 9, 2016, the date of the
sworn complaint, 2 Officer Franklin was assigned to observe the activities at 1526 W. Smith
Street. On one occasion, Franklin observed defendant enter the residence through the front
door without knocking or otherwise seeking permission to enter. Franklin observed at least
three additional individuals present at the address that day, including Kendrick D. Wilson,
Curtis K. Herron, and Jaylan S. Nathan (Jaylan). The sworn complaint listed the criminal
histories of defendant and those persons Franklin observed to be present at 1526 W. Smith
Street. The criminal histories included various convictions for drug and weapons offenses.
¶9 In support of the reliability of the informant, complainant explained that the informant had,
on two previous and unrelated occasions, provided complainant with reliable information
pertaining to purchases of substances containing cocaine. In addition, the complaint included
the following statement from complainant:
“On at least two separate occasions within the last 30 days, the most recent having
been within the last 72 hours, Complainant caused Informant to be thoroughly searched
with nothing illegal being found. Complainant provided Informant with a certain
amount of confidential funds. Surveillance officers watched Informant enter 1526 W.
Smith St., remain for a few moments and exit. Informant returned directly to
Complainant and handed Complainant a quantity of purported crack cocaine.
Complainant tested the purported crack cocaine using the Valtox test kit and received
a positive reaction for the presence of cocaine by color change. Informant stated the
black male who sold the Informant crack cocaine was [defendant], D.O.B. 06/20/88,
black male, A.K.A. ‘Reese’ whom Informant previously described to Complainant.”
¶ 10 After reviewing the information set forth in the sworn complaint, a judge granted
complainant’s request for a search warrant allowing law enforcement officers to search
defendant’s person and the residence at 1526 W. Smith Street.
¶ 11 At the conclusion of the motion hearing, the circuit court stated the court’s interpretation
of the 72-hour language contained in the sworn complaint, providing, “I think he’s saying he
did it twice, and he is detailing the most recent one.” The court found “that the description
provided in the complaint is sufficient to sustain a threshold of probable cause with regard to
1526 West Smith Street.” Consequently, the court denied defendant’s motion to suppress and
the matter proceeded to a jury trial.
¶ 12 B. Jury Trial/The State’s Case
¶ 13 1. Officer Franklin
¶ 14 Defendant’s jury trial began on December 18, 2017. At trial, City of Peoria Police Officer
Franklin testified that he worked in the Special Investigations Division on March 9 and 10,
2016. As part of an investigation into “[d]rugs and guns,” Franklin conducted surveillance of
the residence at 1526 W. Smith Street. On March 9, 2016, Franklin observed defendant and
Jaylan exit a vehicle parked in front of the residence, walk to the front door of the residence,
2
The implications of the 72-hour language are subject to argument by defendant on appeal and will
be addressed later in this order.
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and enter the residence without knocking or using a key. Franklin observed two other males
remain in the vehicle. Franklin did not observe either defendant or Jaylan carrying items out
of the residence or making multiple trips back and forth from the vehicle to the residence. The
next day, March 10, 2016, Franklin observed defendant walk out the front door of 1526 W.
Smith Street and walk around the side of the residence toward the back. Franklin also observed
Jaylan at the residence that day.
¶ 15 On cross-examination, Franklin testified that he did not have a view of the back door of
the residence from his vantage point. Franklin identified the two males that remained in the
vehicle parked in front of the residence on March 9, 2016, as Kendrick Wilson and Curtis
Herron. Franklin testified that defendant and Jaylan eventually exited the residence on
March 9, 2016, entered the vehicle, and left the residence. Franklin did not observe any other
individuals enter or exit the property that day.
¶ 16 Franklin explained that he and other officers returned to conduct surveillance at the
residence on the date the search warrant was executed, March 10, 2016. According to Franklin,
sometime after approximately 11 a.m. on March 10, 2016, but before officers arrived to
execute the search warrant, Franklin observed defendant and Jaylan exit through the front door
of the residence and walk around the back side of the residence.
¶ 17 Once other officers arrived to execute the search warrant for the residence, Franklin
remained in his surveillance position. According to Franklin, the residence was vacant at the
time of the search.
¶ 18 2. Officer Beck
¶ 19 City of Peoria police officer Beck testified that he was part of the “Target Defender Unit”
that executed the search warrant for the residence located at 1526 W. Smith Street on March 10,
2016. Beck explained that his role was to assist in locating and detaining defendant as the
search warrant was being executed at the residence. According to Beck, defendant was located
and detained by officers just around the corner from 1526 W. Smith Street. During the arrest,
Beck searched defendant’s person and discovered a key in his front right coin pocket. 3 Later,
it was confirmed that this key opened the front door of the residence at 1526 W. Smith Street.
¶ 20 After detaining defendant, Beck returned to the residence and assumed the role of evidence
officer. Beck added that in this capacity, he gathered and documented the illegal items
discovered by law enforcement during the execution of the search warrant. The State admitted
and published People’s exhibit No. 1, which Beck identified as a videotape of the premises and
the items collected. Beck narrated the events depicted on the videotape as it was published to
the jury. Beck testified that the videotape depicted the successful usage of the key discovered
on defendant’s person to unlock the front door of the residence. In a couch in the front
bedroom, officers located a wallet containing $1240 and defendant’s identification. Officers
discovered mail addressed to defendant in a kitchen drawer. A digital scale bearing a white
powdery residue and plastic sandwich bags were also recovered in the kitchen cabinets.
Additionally, Beck testified that he discovered two firearms and a box of ammunition on top
of a shelf in the closet of the back bedroom. 4
3
The key Beck discovered was admitted into evidence as People’s exhibit No. 2.
4
The State admitted People’s exhibit No. 5, the box of ammunition; People’s exhibit No. 6, the
article of mail addressed to defendant; People’s exhibit No. 7, the wallet containing $1240; and
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¶ 21 On cross-examination, Beck testified that the identification and the article of mail
discovered in the residence listed defendant’s address as “Garden.” Mail addressed to other
persons at other addresses was also located in the kitchen drawers and elsewhere throughout
the residence.
¶ 22 3. Officer Logan
¶ 23 City of Peoria police officer David Logan testified that he conducted surveillance of the
residence and later participated in the execution of the search warrant on March 10, 2016.
Logan observed the residence on March 10, 2016, for three to four hours prior to the execution
of the search warrant. During that three- to four-hour timeframe, Logan observed defendant
exit the front door of the residence and enter a vehicle that pulled into the driveway. Defendant
did not appear to be carrying anything that would indicate defendant was moving possessions
out of the residence. Approximately 30 to 45 minutes later, defendant and Jaylan returned to
the residence in a different vehicle. At this time, Logan observed defendant use a key to open
the front door and enter the residence. Approximately one hour later, Logan observed
defendant and Jaylan exit through the front door and walk toward the rear of the residence.
Logan did not observe any other individuals enter or exit the residence during this timeframe
on March 10, 2016.
¶ 24 Later in the investigation, Logan collected deoxyribonucleic acid (DNA) samples from
defendant and Jaylan for the purpose of comparing the samples with possible DNA taken from
the firearms located in the residence. 5 Logan was unable to trace ownership of either of the
two firearms to defendant or Jaylan.
¶ 25 On cross-examination, Logan testified that he surveilled the residence on one other
occasion prior to March 10, 2016, but he could not recall the precise date. Logan clarified that
he could not see the back side of the residence from his vantage point. Consequently, Logan
conceded that he was unable to determine whether individuals were entering or leaving the
residence from the back door.
¶ 26 4. Officer Williams
¶ 27 City of Peoria police officer Williams testified that he worked in the Crime Scene
Investigation Unit and was trained in fingerprint analysis and DNA collection. On March 10,
2016, Williams photographed and collected the two firearms discovered in the back bedroom
of the residence. Williams identified People’s exhibit No. 3 as the “loaded” Glock 26 handgun
discovered in the residence. The Glock 26 had an extended magazine, allowing 22 to 28 rounds
to be loaded into the magazine. Williams later discovered, based on an earlier case, that the
Glock 26 had been stolen. Williams did not discover fingerprints sufficient for comparison on
the Glock 26. Williams swabbed the Glock 26 for DNA. 6
People’s exhibit No. 11, the scale and the plastic sandwich bags. Further, the record establishes that the
shelf referenced by Beck was located in a closet, although Beck did not mention a closet specifically.
5
The State admitted People’s exhibit No. 10, defendant’s DNA buccal swab, and People’s exhibit
No. 13, Jaylan’s DNA buccal swab.
6
The State admitted People’s exhibit No. 3, the Glock 26, and People’s exhibit No. 8, the DNA
swabs of the Glock 26.
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¶ 28 Next, Williams identified People’s exhibit No. 4, a Glock 23, 7 as the second firearm
recovered from the residence. Williams did not discover fingerprints sufficient for comparison
on the Glock 23. Williams swabbed the firearm for DNA. 8 Williams later submitted both
firearms and the DNA swabs to the Morton Crime Lab for further testing. On cross-examination, Williams clarified that he also tested the ammunition that was discovered but was
unable to detect viable fingerprints.
¶ 29 5. Michelle Dierker
¶ 30 Michelle Dierker testified as an expert in drug analysis and chemistry. Dierker was
employed by the Illinois State Police at the Morton Forensic Science Laboratory. Dierker
tested the residue present on the scale contained in People’s exhibit No. 11 in the crime lab
and received a positive result for the presence of cocaine.
¶ 31 6. Dustin Johnson
¶ 32 Dustin Johnson testified as an expert witness in firearms analysis and identification.
Johnson testified that he received and tested People’s exhibit No. 3 (the Glock 26) and People’s
exhibit No. 4 (the Glock 23). Johnson found the firearms to be operational. Following
Johnson’s testimony and a jury instruction conference, the State admitted People’s exhibit
No. 12, a certified copy of defendant’s prior felony conviction in Peoria County case No. 10-
CF-73.
¶ 33 7. Jennifer MacRitchie
¶ 34 Jennifer MacRitchie testified as an expert witness regarding forensic biology and DNA
analysis. MacRitchie conducted a DNA test on material collected from both firearms. Her tests
revealed the presence of degraded DNA from at least two individuals on the Glock 26 and at
least five individuals on the Glock 23. MacRitchie was unable to conclusively match the DNA
detected on the firearms to DNA samples collected from defendant or Jaylan. According to
MacRitchie, the DNA results did not allow her to include or exclude any person as the source
of the degraded DNA, including herself.
¶ 35 The State rested following MacRitchie’s testimony. The court denied defendant’s motion
for a directed verdict on both counts.
¶ 36 C. Defense Witnesses
¶ 37 1. Rosemary Davis
¶ 38 The defense first presented the testimony of defendant’s aunt, Rosemary Davis
(Rosemary). Rosemary testified that her sister, Monica Parker, previously lived at 1526 W.
Smith Street. Rosemary believed Parker lived at 1526 W. Smith Street for approximately five
months and moved out of the residence on March 9, 2016. Rosemary visited Parker at the
residence daily.
7
Though Williams did not specifically identify the make and/or model of the second firearm, later
testimony confirmed the second firearm as a Glock 23.
8
The State admitted People’s exhibit No. 4, the Glock 23, and People’s exhibit No. 9, the DNA
swabs of the Glock 23.
-6-
¶ 39 Rosemary testified that defendant “sometimes” lived with her at 2317 West Garden Street
on or about March 9, 2016. Rosemary explained that defendant spent most of his nights with
Angel McShan at an address on McBean Street. During cross-examination, Rosemary
explained that defendant utilized the 2317 West Garden Street address as his physical address
for purposes of receiving a driver’s license and/or mail.
¶ 40 2. Angel McShan
¶ 41 Angel McShan, the mother of defendant’s children, testified that law enforcement also
searched her residence at 714 West McBean Street on March 10, 2016. Defendant had been
living with McShan at 714 West McBean Street for approximately one year. McShan testified
that Parker resided at 1526 W. Smith Street.
¶ 42 On cross-examination, McShan testified that defendant used 2317 West Garden Street as
his formal address. McShan denied telling Officer Sylvester on March 10, 2016, that defendant
usually carried a large black gun with a big clip in it.
¶ 43 3. Monica Parker
¶ 44 Monica Parker testified that she began renting the residence at 1526 W. Smith Street in
November 2015. According to Parker, she moved out of the residence on the evening of
March 9, 2016. Parker stated that her daughter, defendant, Jaylan, Robert Nathan (Robert),
Curtis Herron, and others helped her move out around 5:30 p.m. Parker rented a moving truck,
and the move took approximately one hour, though some items remained in the home. Later
that night, Parker gave defendant the keys to the residence. She expected defendant to remove
the rest of her possessions from the residence the next day. Parker had to work early the next
morning and was not inside the residence on March 10, 2016. Parker did not return to the
residence until after the search on March 10, 2016. Parker testified that the back bedroom of
the residence was her bedroom.
¶ 45 On cross-examination, Parker denied seeing the two firearms or the scale with cocaine
residue inside the residence. Parker testified that defendant never stayed the night at the
residence and did not have a key to the residence before March 9, 2016. Following Parker’s
testimony, the defense rested.
¶ 46 D. Rebuttal
¶ 47 1. Officer Sylvester
¶ 48 City of Peoria police officer Sylvester testified during the rebuttal portion of the trial.
According to Sylvester, he spoke with McShan at her residence on March 10, 2016, following
a consensual search. In response to Sylvester’s questions, McShan stated that she had recently
observed defendant in possession of drugs and firearms. Specifically, McShan indicated that
defendant carried a large black firearm with a big clip in it. According to McShan, she and
defendant were no longer dating.
¶ 49 At this time, defense counsel renewed his motion for a directed verdict. The trial court
denied counsel’s motion before instructing the jury.
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¶ 50 E. Jury Deliberation
¶ 51 During deliberation, the jury sent the following note to the court: “A person has
constructive possession when he lacks actual possession of a thing but he has both the power
and intention to exercise control over a thing. … What defines the intention to exercise
control?” After consulting with the parties, the court responded that the jury had received all
the instructions from the court as needed for the jury to consider the evidence and reach a
verdict on the charges. Thus, the jury should use its own interpretation to reach a determination.
The jury found defendant guilty on both counts.
¶ 52 F. Posttrial Motion
¶ 53 On January 19, 2018, defendant filed a motion for a new trial or, in the alternative, a
judgment notwithstanding the verdict. Defendant’s motion challenged the circuit court’s
rulings denying defendant’s motion for a directed verdict and also asserted the State’s evidence
was not sufficient to prove defendant had constructive possession of the scale containing the
controlled substance or the firearms. The court denied defendant’s posttrial motion. The court
sentenced defendant to concurrent two-and-a-half year sentences on both counts. Defendant
appeals.
¶ 54 II. ANALYSIS
¶ 55 In this appeal, defendant challenges the court’s pretrial ruling denying defendant’s motion
to suppress. In addition, defendant argues the State’s evidence, presented at trial, was
insufficient. Alternatively, defendant seeks to have his conviction for unlawful possession of
a weapon by a felon, as alleged in count I, set aside due to the vagueness of the language of
the indictment. The State asserts the circuit court properly denied the motion to suppress and
submits that the evidence presented at trial was sufficient to establish defendant’s constructive
possession of the controlled substance and firearms. In addition, the State contends that count
I of the indictment, alleging the offense of unlawful possession of a weapon by a felon, was
sufficient to prevent future double jeopardy concerns.
¶ 56 A. Motion to Suppress/Probable Cause for Search Warrant
¶ 57 First, defendant maintains that he is entitled to have his convictions reversed because the
circuit court improperly denied his motion to suppress. On appeal, defendant argues that the
contents of the sworn complaint requesting a search warrant, even if taken as true, failed to
establish the requisite probable cause to justify the issuance of the search warrant.
¶ 58 This court applies a two-part standard of review when assessing the denial of a motion to
quash arrest and suppress evidence. People v. Grant, 2013 IL 112734, ¶ 12. We review the
circuit court’s factual findings against the manifest weight of the evidence; however, we review
the court’s ultimate ruling on the motion to suppress evidence de novo. People v. Manzo, 2018
IL 122761, ¶ 25.
¶ 59 The relevant case law instructs that a search warrant has been erroneously issued if there
is no probable cause to believe that a violation of the law has taken place and that evidence of
the violation would likely be found in the location to be searched. Id. ¶¶ 29-30. To establish
probable cause, there must exist some nexus between the criminal offense, the items sought,
and the place to be searched. Id. ¶ 35. A probable cause determination turns on the totality of
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the circumstances known to the officers and the court when the warrant is applied for and is
based upon commonsense, rather than technical, considerations. Id. ¶¶ 29-30. Unlike the
quantum of proof necessary to obtain a criminal conviction, the probability of criminal activity,
rather than proof beyond a reasonable doubt, is the proper standard for determining the
existence of probable cause in the context of a search warrant. People v. Tisler, 103 Ill. 2d 226,
236 (1984).
¶ 60 Here, defendant argues that the sworn complaint did not contain sufficient language
allowing the court to conclude that evidence of criminal activity was present in the residence
before the informant entered that location on prior occasions. In other words, defendant claims
that the court should have considered whether the informant brought the contraband into the
residence before returning after the purported controlled buy. We are not persuaded by defense
counsel’s unfounded speculation.
¶ 61 On appeal, defense counsel has repeatedly asserted that the language contained in the
sworn complaint describes that only one controlled purchase took place at 1526 W. Smith
Street before the search warrant was issued. However, when ruling on the motion to suppress,
the circuit court rejected this construction of the sworn complaint. In fact, the circuit court
found that the sworn complaint documented two separate controlled purchases of narcotics at
the residence. The circuit court’s finding is supported by a reading of the plain language at
issue. Contrary to defendant’s contention, the plain language of the sworn complaint clearly
documents “at least” two controlled buys within the 30 days preceding the sworn complaint.
¶ 62 Defendant also challenges the reliability of the informant’s second controlled purchase of
a controlled substance from defendant at 1526 W. Smith Street. Defendant claims the sworn
complaint stated that the informant was searched sometime within 72 hours of the second
controlled purchase and was not immediately searched before entering 1526 W. Smith Street
to purchase narcotics. Based upon our careful review, we conclude defendant is also
misreading the following language in the sworn complaint:
“On at least two separate occasions within the last 30 days, the most recent having
been within the last 72 hours, Complainant caused Informant to be thoroughly searched
with nothing illegal being found. Complainant provided Informant with a certain
amount of confidential funds. Surveillance officers watched Informant enter 1526 W.
Smith St., remain for a few moments and exit. Informant returned directly to
Complainant and handed Complainant a quantity of purported crack cocaine.
Complainant tested the purported crack cocaine using the Valtox test kit and received
a positive reaction for the presence of cocaine by color change. Informant stated the
black male who sold the Informant crack cocaine was [defendant], D.O.B. 06/20/88,
black male, A.K.A. ‘Reese’ whom Informant previously described to Complainant.”
¶ 63 Clearly, the 72-hour reference, set forth above, pertains to the timing of the last controlled
purchase relative to the presentation of the sworn complaint to the court. We conclude this
language does not describe a gap in time between the search of the informant’s person and the
second controlled purchase at the Smith Street address. Thus, we reject defendant’s
interpretation of the language pertaining to the 72-hour reference as inconsistent with the
record.
¶ 64 Next, we consider our supreme court’s decision in Manzo, 2018 IL 122761. On appeal,
defendant contends that Manzo requires a sworn complaint for search warrant to establish a
nexus between defendant, the contraband, and the address to be searched—namely, 1526 W.
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Smith Street. In Manzo, our supreme court held that a drug dealer’s activities, which were
loosely connected to the defendant’s home, did not create probable cause to issue a search
warrant for the defendant’s home. Id. ¶¶ 36-41. However, Manzo is distinguishable from the
case at hand because the controlled purchases of narcotics in Manzo did not take place at a
residence, but instead took place at public locations, such as a supermarket and a liquor store.
Id. ¶¶ 6-8. Unlike the instant case, the facts in Manzo were insufficient to establish that
narcotics were likely to be located in the place to be searched, being the defendant’s home in
that case, where no person witnessed the presence of narcotics in the home.
¶ 65 We are further mindful that defendant attacks the decision granting permission to search
the residence but does not challenge that portion of the document allowing law enforcement to
search defendant’s person. On appeal, defendant conflates the different considerations unique
to each type of permitted search. Here, based on the issue defendant has presented for our
review, we focus on whether probable cause was established to support the view that certain
items or particular evidence of criminal activities, as identified in the sworn complaint, were
likely to be present at 1526 W. Smith Street at the time the search warrant was granted.
Defendant’s personal relationship to the residence, while relevant, must be evaluated in the
context of many considerations and should not be evaluated in isolation.
¶ 66 In this case, the sworn complaint documented at least two previous purchases of substances
containing cocaine by the informant while present inside 1526 W. Smith Street. The sworn
complaint alleged that the informant entered the address without contraband on his person and
returned from that address with contraband that he handed over to law enforcement. The
previously reliable informant advised officers that he purchased the contraband from defendant
while inside the residence that day. The sworn complaint documented that all controlled
purchases with the informant took place within the last 30 days preceding March 9, 2016, and
that the last controlled purchase took place within 72 hours of March 9, 2016. The informant’s
representations were partially corroborated by Officer Franklin’s surveillance activities,
documenting that defendant entered and exited the residence at 1526 W. Smith Street on
March 9, 2016, the date the search warrant was issued.
¶ 67 Although we do not find that this sworn complaint contained doubtful or marginal probable
cause with respect to 1526 W. Smith Street containing evidence of illegal activity, we note that
our supreme court instructs that the “resolution of doubtful or marginal cases should largely
be determined by the preference to be accorded to the warrants” because sworn complaints
supporting search warrants are presumed valid. Id. ¶¶ 31-32. For these reasons, we conclude
that the complaint established sufficient probable cause for the court to find that evidence of
illegal activities would be present at 1526 W. Smith Street at the time the search warrant was
issued.
¶ 68 B. Sufficiency of the Evidence at Trial
¶ 69 Next, we consider the sufficiency of the evidence as it relates to defendant’s constructive
possession of the firearms and the controlled substance. It is undisputed that defendant was not
present in the residence when the search warrant was executed and that the contraband at issue
was not discovered on or about defendant’s person when he was detained that day in the
neighborhood. The State argues we should affirm defendant’s convictions where the evidence
at trial, viewed in the light most favorable to the State, was sufficient to establish defendant’s
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control over the residence, as well as defendant’s knowledge of the presence of the contraband
that was ultimately discovered by law enforcement during the execution of the search warrant.
¶ 70 When faced with a challenge to the sufficiency of the evidence, it is not the function of the
reviewing court to retry the defendant. People v. Sutherland, 223 Ill. 2d 187, 242 (2006);
People v. Collins, 106 Ill. 2d 237, 261 (1985). Rather, viewing the evidence in the light most
favorable to the prosecution, a reviewing court is tasked with determining whether any rational
trier of fact could have found the essential elements of the crime proven beyond a reasonable
doubt. Sutherland, 223 Ill. 2d at 242; Jackson v. Virginia,
443 U.S. 307, 319 (1979).
¶ 71 It is the responsibility of the trier of fact to determine the credibility of the witnesses, to
weigh the witness testimony, to resolve conflicts in the evidence, and to draw reasonable
inferences that flow from the evidence. People v. Williams, 193 Ill. 2d 306, 338 (2000); People
v. Young, 128 Ill. 2d 1, 49 (1989). Reviewing courts must give due consideration to the reality
that the trier of fact saw and heard the witnesses and the evidence firsthand. People v. Smith,
185 Ill. 2d 532, 541 (1999). Ultimately, “[t]he testimony of a single witness, if it is positive
and the witness credible, is sufficient to convict.” Id. Furthermore, a conviction may be
sustained solely on circumstantial evidence as well as upon direct evidence. People v.
Patterson, 217 Ill. 2d 407, 435 (2005). A defendant’s conviction will be overturned based on
insufficient evidence only where the proof is so improbable or unsatisfactory that a reasonable
doubt as to the defendant’s guilt remains. Williams, 193 Ill. 2d at 338.
¶ 72 To support a conviction for the possession of contraband, in this case firearms and a
controlled substance, the State must prove (1) that the defendant had knowledge of the
presence of the contraband and (2) that the contraband was in the defendant’s immediate and
exclusive control. People v. Tates, 2016 IL App (1st) 140619, ¶ 19. Regarding count I, the
State was also required to prove that defendant had a previous felony conviction. In this case,
defendant stipulated that he was a convicted felon. Consequently, defendant limits his
argument to the insufficient evidence pertaining to defendant’s control of the premises and the
knowing possession of the controlled substance and/or either firearm.
¶ 73 At the outset, we emphasize that defendant was not charged with possession of the
controlled substance and firearms based on defendant’s purported previous transactions with
the informant at that residence. Rather, the criminal charges against defendant stemmed from
the discovery of evidence of criminal activity within that residence on March 10, 2016, after
defendant was observed leaving that address.
¶ 74 The case law provides that “[c]onstructive possession exists where there is no actual,
personal, present dominion over contraband, but defendant had knowledge of the presence of
the contraband, and had control over the area where the contraband was found.” People v.
Hunter, 2013 IL 114100, ¶ 19. Oftentimes, the knowledge element of constructive possession
may be inferred from the defendant’s control of a given location. People v. Bogan, 2017 IL
App (3d) 150156, ¶ 29. “Where there is no evidence that the defendant controls the premises,
proof of mere presence, even combined with defendant’s knowledge of [contraband], will not
support a finding of constructive possession unless there is other circumstantial evidence of
defendant’s control over the contraband.” Tates, 2016 IL App (1st) 140619, ¶ 20. Here, it is
undisputed that defendant was not in the residence at the time the evidence of criminal activity
was discovered. Defendant’s absence meant defendant did not have immediate access to the
area within the residence when the controlled substance and firearms were seized.
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¶ 75 Frequently, constructive possession manifests itself in scenarios where, for instance,
contraband is discovered in a vehicle that the defendant was driving. In such a clear-cut factual
scenario, fact finders may logically surmise that the defendant knowingly possessed the
contraband discovered within the vehicle defendant was operating, provided that the
contraband was located in a place that was subject to the defendant’s immediate and exclusive
control. See People v. Nesbit, 398 Ill. App. 3d 200 (2010). Establishing the control necessary
for the existence of constructive possession in the instant case is considerably more
complicated than the example discussed above.
¶ 76 1. Defendant’s Control of 1526 W. Smith Street
¶ 77 First, the State’s evidence did not conclusively establish, beyond a reasonable doubt, that
defendant owned, rented, or even temporarily resided at 1526 W. Smith Street. See People v.
Maldonado, 2015 IL App (1st) 131874, ¶ 29 (“Habitation of the location where contraband is
found can constitute sufficient evidence of control to establish constructive possession.”). The
uncontroverted testimony established that defendant lived with his girlfriend, McShan, at 714
West McBean Street, or with Rosemary, Parker’s sister, at 2317 West Garden Street on or
about March 10, 2016. Parker testified that she rented and recently moved out of 1526 W.
Smith Street and temporarily provided defendant with the key to that residence on March 9,
2016, for the limited purpose of assisting Parker when moving out of that residence. The State
introduced the testimony of two officers who observed defendant, and others, coming and
going from the residence on several occasions on or about March 9 and March 10, 2016, both
before and after Parker stated that she gave defendant a key. However, this testimony merely
established defendant’s presence at the residence, not defendant’s habitation of the residence.
¶ 78 Similarly, the discovery of a suspect’s personal effects inside a given location may be
indicative of a suspect’s control over that location. See People v. Spencer, 2012 IL App (1st)
102094, ¶ 17; Maldonado,
2015 IL App (1st) 131874, ¶ 29; People v. Cunningham,
309 Ill.
App. 3d 824, 828 (1999). It is undisputed that mail bearing defendant’s name was recovered
in the kitchen. However, we agree with defendant’s assertion that the discovery of mail bearing
defendant’s name and referencing a “Garden” address carries little weight as circumstantial
evidence. For example, the State presented no testimony about the date the mail was
postmarked. Further, additional mail addressed to other persons was also located in the kitchen
and throughout the residence. The State did not present evidence regarding whether the other
mail discovered was addressed to those other persons who were observed entering and exiting
the residence. The absence of such information substantially weakens the significance of a
single piece of mail bearing defendant’s name. It is undisputed that defendant’s wallet was
recovered from a couch in the front bedroom. Though defendant’s identification was located
inside the wallet, the identification did not list 1526 W. Smith Street as defendant’s address.
¶ 79 After carefully reviewing this record, we conclude that a reasonable person would not be
able to conclude that defendant had exclusive control over the residence on March 10, 2016,
such that defendant could be found to have knowingly possessed the contents of the entire
household. However, this conclusion does not end our analysis of the sufficiency of the State’s
evidence. The case law instructs that even if defendant did not exclusively occupy or control
the premises located at 1526 W. Smith Street, the State could meet its burden of proof regarding
constructive possession by introducing direct evidence tying defendant to the controlled
substance and/or the firearms. See People v. Minniweather, 301 Ill. App. 3d 574, 578 (1998).
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Thus, we turn our attention upon defendant’s relationship to the contraband, rather than
defendant’s relationship to the address.
¶ 80 2. Defendant’s Relationship to the Seized Items
¶ 81 Here, the investigation did not reveal defendant’s fingerprints or DNA on either the scale
with the cocaine residue or the firearms. There was no direct evidence showing defendant
touched or exerted actual control over any of these items.
¶ 82 As noted above, in addition to Parker, the lawful tenant, defendant was one of two
individuals observed entering and leaving the residence during the relevant time period.
Further, taking Parker’s testimony as true, many more individuals, including Parker, were
present in the residence the night before the search. Based on this evidence, any of those
individuals was just as likely as defendant to have carried the contraband into the household.
¶ 83 It cannot be ignored that Parker admitted that the back bedroom, where the firearms were
discovered, was the bedroom she occupied and considered to be her bedroom. The location of
the firearms, inside a closet on the top shelf, does not suggest that defendant had reason to
know of their presence. The scale containing the cocaine residue was similarly stored out of
sight in a kitchen cabinet. Lastly, neither the mail addressed to defendant nor his wallet
established a relationship between defendant and the contraband where these items were not
located in the immediate vicinity of the contraband. Stated simply, there was no evidence
directly linking defendant to the firearms or the cocaine residue other than his prior presence
at 1526 W. Smith Street before the execution of the search warrant.
¶ 84 For these reasons, even viewing the evidence in the light most favorable to the State, we
are unable to conclude that a rational trier of fact could deduce that defendant had knowledge
and control over the controlled substance or either firearm. We reverse defendant’s convictions
on count I, unlawful possession of a weapon by a felon, and count II, unlawful possession of a
controlled substance. 9
¶ 85 C. Sufficiency of the Indictment/Double Jeopardy
¶ 86 Lastly, defendant argues that count I of the indictment, charging unlawful possession of a
weapon by a felon, was insufficient to shield defendant from future prosecution based on the
principle of double jeopardy. Defendant points out that the evidence at trial established the
discovery of two firearms and count I failed to identify which firearm the State alleged
defendant possessed. Defendant therefore speculates that the State could bring charges related
to the other firearm in the future. Importantly, defendant does not argue that the language of
the indictment prejudiced defendant in the preparation of his defense in the instant trial.
Instead, defendant seeks relief based on a hypothetical scenario that is unlikely to, and has not,
occurred. Thus, we conclude the issue is not ripe for our review and will not be addressed in
this appeal.
9
The reversal of defendant’s convictions render moot the issues pertaining to a directed verdict
and/or judgment notwithstanding the verdict.
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¶ 87 III. CONCLUSION
¶ 88 Defendant’s convictions and the judgment of the circuit court of Peoria County is reversed.
¶ 89 Reversed.
¶ 90 PRESIDING JUSTICE McDADE, specially concurring:
¶ 91 I concur with the majority’s decision reversing Davis’s convictions outright in this case. I
write separately to express that, for the following reasons, I believe the circuit court erred in
denying Davis’s motion to suppress and that the search warrant should never have issued.
¶ 92 Davis’s first argument on appeal is that the circuit court erred when it denied his motion to
suppress evidence. Specifically, he contends that there was a fatal flaw in the evidence to
support the issuance of the search warrant because the informant was not searched for narcotics
or other contraband immediately prior to making the controlled purchase.
¶ 93 Davis acknowledges that he has forfeited this argument for appellate review. He claims
that the issue is reviewable under both prongs of the plain error doctrine.
¶ 94 Forfeited errors may be reviewed on appeal if clear error occurred and either the evidence
is closely balanced or the error was so serious that it affected the fairness of the trial and
challenged the integrity of the judicial process. People v. Piatkowski, 225 Ill. 2d 551, 565
(2007). The first step in plain error review is to determine if error in fact occurred. People v.
McGee, 398 Ill. App. 3d 789, 794 (2010).
¶ 95 Our supreme court has stated the following regarding a challenge to the sufficiency of
probable cause to support a search warrant:
“Pursuant to federal and state warrant requirements, a detached judicial officer must
resolve the question of whether probable cause exists to justify issuing a warrant.
[People v. Tisler, 103 Ill. 2d 226, 236 (1984).] Whether probable cause exists in a
particular case turns on the ‘ “totality of the circumstances and facts known to the
officers and court when the warrant is applied for.” ’ Id. (quoting People v. Free,
94
Ill. 2d 378, 400 (1983)). Accordingly, probable cause exists in a particular case when
the totality of the facts and circumstances within the affiant’s knowledge at the time
the warrant is applied for ‘was sufficient to warrant a person of reasonable caution to
believe that the law was violated and evidence of it is on the premises to be searched.’
People v. Griffin, 178 Ill. 2d 65, 77 (1997). It is the probability of criminal activity,
rather than proof beyond a reasonable doubt, that is the standard for determining
whether probable cause is present. Tisler, 103 Ill. 2d at 236.
Whether the necessary probability exists is governed by commonsense
considerations that are factual and practical, rather than by technical rules. Id. As the
United States Supreme Court explained in Illinois v. Gates, 462 U.S. 213, 238 (1983):
‘The task of the issuing magistrate is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit before him,
including the “veracity” and “basis of knowledge” of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime will
be found in a particular place.’
A reviewing court must not substitute its judgment for that of the magistrate in
construing an affidavit but must instead merely decide whether the magistrate had a
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substantial basis for concluding that probable cause existed. [People v. McCarty, 223
Ill. 2d 109, 153 (2006).] The court’s review must not be tainted by hindsight but instead
should be based upon whether ‘ “a reasonable and prudent man, having the knowledge
possessed by the officer at the time of the arrest, would believe the defendant
committed the offense.” ’ Tisler, 103 Ill. 2d at 237 (quoting People v. Wright,
41 Ill.
2d 170, 174 (1968)). Moreover, in determining whether an affidavit demonstrates the
existence of probable cause, the resolution of doubtful or marginal cases should largely
be determined by the preference to be accorded to the warrants. People v. Stewart, 104
Ill. 2d 463, 477 (1984).” People v. Manzo,
2018 IL 122761, ¶¶ 29-31.
¶ 96 The majority has misconstrued the language of the search warrant. The operative part of
the complaint for search warrant here is the statement that “[o]n at least two separate occasions
within the last 30 days, the most recent having been within the last 72 hours, Complainant
caused Informant to be thoroughly searched with nothing illegal being found.” From a purely
grammatical perspective, there are three clauses in the aforementioned sentence: (1) “[o]n at
least two separate occasions within the last 30 days”; (2) “the most recent having been within
the last 72 hours”; and (3) “Complainant caused Informant to be thoroughly searched with
nothing illegal being found.” The only independent clause is the third one. Clauses one and
two are dependent clauses (i.e., they depend on the third clause to make a complete, coherent
sentence).
¶ 97 The subject of the independent clause is the complainant, the verb is “searched,” and the
object is the informant. Reading the two dependent clauses in light of the independent clause,
there is no question that the sentence means (1) the informant was searched by the complainant
on at least two separate occasions within the last 30 days, (2) one of those searches occurred
within the 72 hours preceding the writing of the complaint for search warrant, and (3) the
searches produced nothing illegal. Quite simply, there is no other way to read this sentence and
no basis to read anything more into it.
¶ 98 Further, the majority’s conclusion that the plain language of the operative paragraph from
the complaint for a search warrant “clearly documents ‘at least’ two controlled buys” (supra
¶ 61) is profoundly incorrect. Due to the aforementioned grammatical structure of the operative
paragraph’s first sentence, the sentence clearly does not state Davis was involved in two
controlled buys. Rather, it only states Davis was searched twice. Nothing in the rest of that
paragraph, or anything else in the complaint for search warrant, states that two controlled buys
involving Davis occurred. Reading the operative paragraph properly—i.e., without any
generous inferences in favor of the State—leads to the inescapable conclusion that Davis was
allegedly involved in only one controlled buy.
¶ 99 The majority also concludes that the operative language of the complaint for search
warrant, as quoted above, “does not describe a gap in time between the search of the
informant’s person and the second controlled purchase at the Smith Street address.” Supra
¶ 63. That is certainly true because it contains no mention at all of any controlled buy. Thus,
there is nothing in the sentence from which to conclude that a gap either did or did not exist
between the search and the controlled buy, even when taking into account the rest of the
paragraph, as cited by the majority in paragraph 62 (supra ¶ 62). Additionally, and far more
importantly, there is nothing in the language that states or even suggests that the informant was
searched immediately prior to his engaging in the controlled buy at issue in this case. And
therein lies the crux of Davis’s argument on the motion to suppress, evidenced by statements
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he makes such as “[c]rucially, prior to the purchase the informant was not searched for drugs
or other contraband, and there is no way of knowing from the complaint for search warrant
whether or not the informant had the drugs on him when he entered the building.”
¶ 100 Davis further argues that this lack of information resulted in the magistrate improperly
inferring that the informant did not have any narcotics on his person when he entered the
residence. Therefore, Davis continues, the magistrate lacked a substantial basis to conclude
that probable cause existed to issue the search warrant. The majority does not address this
specific argument. I would have addressed it and agreed with Davis that the magistrate lacked
probable cause to issue the search warrant. See People v. McCarty, 223 Ill. 2d 109, 153 (2006).
¶ 101 My conclusion that the complaint for search warrant lacked any showing that the informant
was searched immediately prior to the controlled buy is buttressed by two identical statements
made by the complainant in the subsequent two paragraphs of the complaint for search warrant.
When he described the reliability of the informant coming from two other occasions on which
the informant had performed controlled buys, the complainant specifically stated that the
informant was searched immediately prior to performing the buys: “Complainant caused
Informant to be thoroughly searched and it was determined that there was no contraband on
Informant’s person. Complainant then watched Informant go directly to the specific location,
enter, remain a few minutes, then return directly to the Complainant.” (Emphasis added.) We
know from those two paragraphs that (1) complainant knew a search performed immediately
before the controlled buy was critically important and (2) complainant knew how to say that
such a search had been done. In the paragraph cited by the majority in paragraph 62 (supra
¶ 62), the complainant made no temporal statement to indicate a search of the informant
occurred immediately prior to a controlled buy.
¶ 102 Perhaps the complainant intended to express the same narrative in the paragraph cited by
the majority in paragraph 62 (supra ¶ 62), as he did in those subsequent two paragraphs, but
he did not. Because he did not, there is nothing in the complaint for search warrant from which
the magistrate could reasonably conclude that the informant had no cocaine in his possession
when he allegedly made the purchase. I do not believe such an omission can be corrected, even
under case law that states “the resolution of doubtful or marginal cases should largely be
determined by the preference to be accorded to the warrants” (Manzo, 2018 IL 122761, ¶ 31).
This is quite simply not a doubtful or marginal case. There is no factual basis asserted in the
complaint for search warrant to support the magistrate’s critical finding of probable cause, and
the resulting issuance of the warrant cannot properly stand.
¶ 103 I would also hold that the circuit court’s ruling on the motion to suppress cannot be saved
by the good faith exception to the exclusionary rule, as posited by the State in its brief. The
State does not include any substantive argument regarding the good-faith exception;
accordingly, the State has forfeited this argument. See Ill. S. Ct. R. 341(i) (eff. Oct. 1, 2020)
(requiring an appellee’s brief to comply with Rule 341(h)(7), which requires points to be
argued and supported by citation to authority).
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