People v. Montes

1

2024 IL App (2d) 240032-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GILBERTO MONTES, Defendant-Appellant.

No. 2-24-0032

Court of Appeals of Illinois, Second District

December 4, 2024

This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Kane County. No. 15-CF-928 Honorable Keith A. Johnson, Judge, Presiding.

KENNEDY, PRESIDING JUSTICE delivered the judgment of the court. Justices Jorgensen and Mullen concurred in the judgment.

ORDER

KENNEDY, PRESIDING JUSTICE

¶ 1 Held: We agree with appellate counsel that this appeal presents no issue of arguable merit; therefore, we grant counsel's motion to withdraw and affirm the judgment.

¶ 2 Defendant, Gilberto Montes, appeals from the denial following an evidentiary hearing, of his amended petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)) for relief from his conviction of unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(D) (West 2014)). The Office of the State Appellate Defender was assigned to represent defendant in this appeal but now moves to withdraw claiming that there are no arguably meritorious issues for appeal. For the reasons below, we grant the motion and affirm the denial of defendant's amended postconviction petition.

¶ 3 I. BACKGROUND

¶ 4 Defendant was indicted on a single count each of unlawful possession of a controlled substance (720 ILCS 570/402(a)(2)(D) (West 2014)) and unlawful possession of a controlled substance with intent to deliver. Before trial defendant moved to quash his arrest and suppress evidence. In the motion, he alleged that, while lawfully operating his vehicle at Indian Trail Road and Farnsworth Street in Aurora, he was stopped by members of the Aurora Police Department and the Department of Homeland Security (DHS). He was "asked for an [sic] identification and was told there was a warrant for his arrested [sic] for selling marijuana." The officers searched his vehicle without a warrant or his consent. They recovered no contraband. They then placed defendant into a police vehicle, drove to his residence, and searched it without a warrant or his consent. "Two [k]ilograms and other evidence" were discovered during the allegedly unlawful arrest and search.

¶ 5 The trial court held an evidentiary hearing on the motion to quash and suppress. In his opening statement, defense counsel asserted:

"[Defendant] was stopped by [DHS] prior to him committing any crime or doing anything unlawful. He was placed into custody, and it's my understanding that at that point then they learned that he was an illegal alien, and he was placed into custody for that. That's really not one of the issues in the case at this point, but I guess it is a sub-issue."

Counsel proceeded to assert that the searches of defendant's vehicle and home were unlawful because they were conducted without a warrant or his consent. Counsel did not further address defendant's immigration status.

¶ 6 In its opening statement, the State remarked that, before approaching defendant, the officers had information that he was "possibly engaged in narcotics trafficking" and was "in the country illegally." The State asserted that defendant consented to the search of his house.

¶ 7 Defendant testified that, on June 12, 2015, he drove his truck to a Walgreens store. When he returned to the truck, an individual who said he was with DHS told defendant to stop. Several other law enforcement officers arrived at the scene. Defendant was told that he was under arrest for selling marijuana. After the officers searched defendant's truck, they drove him to his house and searched it without showing him a warrant or obtaining his consent. On cross-examination, the State asked defendant whether he had proper documentation to live in the United States. Defense counsel objected, and the trial court sustained the objection, reasoning that the question "would require [defendant] to *** make an incriminating statement."

¶ 8 Montague Hall, a detective with the Waukegan Police Department, testified that he was a member of a DHS task force investigating narcotic offenses throughout the Chicago area, including Aurora. In January 2015, Hall's task force was investigating defendant and had information that he "was [selling] narcotics and laundering money back to the Mexican cartel." Asked if the task force had any "information about the defendant's status as it relates to being in the United States[,]" Hall responded, "Through identifying him, we learned that he was illegal in the United States." Hall added that the task force obtained the information about defendant's immigration status from an immigration office.

¶ 9 Hall testified that, on June 12, 2015, he and fellow officer James Lindley approached defendant in a Walgreens parking lot. Hall spoke with defendant in Spanish. Neither Hall nor Lindley told defendant to" 'stop.'" Hall advised defendant that "he was under investigation for being illegal in the country at the time." In the meantime, Eric Powell, an "immigration officer," arrived at the scene. Powell confirmed that defendant was in the United States illegally. Defendant was then taken into custody and informed of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Hall advised defendant that he was suspected of, among other things, selling cannabis from his house. Defendant denied that there was any cannabis in his house, and he told the officers that they "were free to check his house if [they] wanted to." The officers placed defendant into the back of a squad car, drove him to his house, and searched it. The officers recovered money, ledgers, and two kilograms of cocaine. Defendant's truck was also searched, and cannabis was recovered. Hall did not ask defendant for written consent for the searches.

¶ 10 During closing argument, defense counsel contended that the State failed to establish that defendant consented to the search of his house. According to counsel, defendant's mere statement that officers could "check his house" (which he made in response to being told that he was suspected of selling cannabis from the house) was too vague to establish that defendant "understood his rights, understood he had a right to refuse, and that he did this freely and voluntarily." Counsel did not address whether the officers had probable cause to arrest defendant based on his immigration status.

¶ 11 In denying the motion to quash and suppress, the trial court found that (1) before approaching defendant, the officers had determined that he was in the United States illegally; (2) the officers legally stopped defendant and took him into custody; and (3) defendant validly consented to a search of his home.

¶ 12 After a bench trial, defendant was convicted of possession of a controlled substance with intent to deliver. In his posttrial motion, defendant argued, inter alia, that both his arrest and the subsequent search of his home were unlawful and, thus, the trial court erred by denying his motion to quash and suppress. However, at the hearing on the posttrial motion, defense counsel stated, "We had earl[ier] alleged that it was an illegal arrest, but I think the fact that the defendant didn't have any immigration status in the United States probably vitiates that argument[.]" Counsel then argued that the officers did not obtain defendant's valid consent to search his home. The trial court denied the posttrial motion.

¶ 13 Defendant appealed, arguing that his arrest was unlawful because the officers had neither a warrant nor probable cause to believe that he had committed a crime. People v. Montes, 2020 IL App (2d) 180565, ¶ 33 (Montes I). On the issue of probable cause, defendant noted that the ostensible justification for his arrest was that he was in the United States unlawfully. Id. Citing Arizona v. United States, 567 U.S. 387, 407 (2012), defendant argued that illegal presence in the United States is not a crime and, thus, his immigration status did not furnish probable cause for his arrest. Montes I, 2020 IL App (2d) 180565, ¶¶ 33-34. In Arizona, the United States Supreme Court said: "As a general rule, it is not a crime for a removable alien to remain present in the United States. [Citation.] If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent." Arizona, 567 U.S. at 407.

¶ 14 We rejected defendant's argument, concluding that "[his] actions in the trial court preclude[d] him from arguing on appeal that the officers lacked probable cause to arrest him for an immigration violation." Montes I, 2020 IL App (2d) 180565, ¶ 41. Specifically, we noted that, because defendant's written motion to quash and suppress did not specify that his immigration status was not a valid basis for an arrest, the State was not put on notice of defendant's position as to the facts and the law. Id. ¶ 42. We also noted that, in his opening statement at the suppression hearing, defense counsel indicated that defendant's immigration status was "not one of the issues in the case at th[at] point," but then counsel added the vague qualification that "it [was] a subissue." Id. ¶ 43. We further noted that, even after hearing testimony that the officers arrested defendant after determining that he was in the United States illegally, defense counsel did not address the legality of defendant's arrest, but instead confined his argument to whether defendant consented to the warrantless search of his home. Id. We observed that, "[h]ad defendant properly set forth the issue in the trial court, the State could have explored it...