Digitally signed by Reporter of Decisions Reason: I attest to Illinois Official Reports the accuracy and integrity of this document Appellate Court Date: 2022.08.01 12:56:01 -05'00'

People v. Padilla, 2021 IL App (1st) 171632 Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. Caption ROBERT PADILLA, Defendant-Appellant. District & No. First District, Fourth Division No. 1-17-1632 Filed June 24, 2021 Modified upon denial of rehearing August 12, 2021 Decision Under Appeal from the Circuit Court of Cook County, No. 13-CR-12178; the Review Hon. Evelyn B. Clay, Judge, presiding. Judgment Affirmed. Counsel on James E. Chadd, Douglas R. Hoff, and Maggie A. Heim, of State Appeal Appellate Defender’s Office, of Chicago, for appellant. Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Brian A. Levitsky, and Ahmed Islam, Assistant State’s Attorneys, of counsel), for the People. Panel JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Reyes concurred in the judgment and opinion. OPINION ¶1 Following a bench trial, defendant Robert Padilla was convicted of one count of being an armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2012)), two counts of unlawful use or possession of a weapon by a felon (id. § 24-1.1(a)), one count of unlawful use or possession of a weapon by a felon (id.), one count of burglary (id. § 19-1(a)), and three counts of theft (id. § 16-1(a)(1)(A)). Defendant was acquitted of one count of possession of burglary tools (id. § 19-2) and one count of criminal damage to property (id. § 21-1(a)). He was sentenced to concurrent sentences of eight years in the Illinois Department of Corrections on the armed habitual criminal and burglary counts. ¶2 On appeal, defendant alleges that (1) the evidence was insufficient to establish his guilt beyond a reasonable doubt, (2) the trial court erroneously denied his motion to suppress evidence obtained pursuant to a search warrant, (3) inadmissible hearsay evidence was admitted against him at trial, and (4) trial counsel was ineffective for failing to support defendant’s defense at trial with evidence establishing that he was not connected to the offenses. ¶3 For the reasons that follow, we affirm both defendant’s convictions and sentences. 1 ¶4 I. BACKGROUND ¶5 On May 26, 2013, Cindy Giron was the assistant store manager on duty at the Walgreens at 3045 West 26th Street and was responsible for closing the store at 9 pm. The store was located in a strip mall and was connected to another vacant business with an address of 3051 West 26th Street, which was formerly occupied by Washington Mutual Bank. ¶6 Before closing the store, Ms. Giron counted the contents of each register and then dropped the contents of each register into a safe located in the office, which was at the back of the store. The office contained two safes. One held money and identification cards or debit cards that people forgot at the store, while the other held Chicago Transit Authority (CTA) bus cards and cigarettes. Everything was secured in the safes before Ms. Giron left work. Before leaving the store, Ms. Giron ensured that no customers or employees were still inside, turned off the lights, locked the doors, and turned on the alarm system. By the time that all of these tasks were completed it was between 9:45 and 10 p.m. ¶7 The following day, May 27, 2013, another assistant store manager, Salomea Cuevas, arrived at the Walgreens at 7:20 or 7:25 a.m. Upon arriving at the store, Ms. Cuevas disarmed the alarm system and went to the office, where she noticed a lot of debris in the hallway right outside of the office door. Inside the office, Ms. Cuevas saw a three-foot hole in the wall. Both In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this 1 appeal has been resolved without oral argument upon the entry of a separate written order.

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safes were missing, and the office was a mess. When Ms. Cuevas looked through the hole, she saw the safe that held the cigarettes and bus passes in the adjacent vacant Washington Mutual Bank property. Ms. Cuevas called 911, and the police were dispatched to the scene. ¶8 Ms. Cuevas testified that the safe that held the money contained three days’ worth of deposits, with a total estimated value of $40,000. Money from the day’s sales was banded together with deposit bands, while coins were rolled. The displaced safe was pried open, revealing that its contents were all missing. Ms. Cuevas estimated the value of the missing CTA cards to be between $10,000 and $20,000. Between 20 and 30 cartons of cigarettes, totaling between 200 and 300 individual packs of cigarettes, were also taken. ¶9 James Santiago, the general manager of the strip mall, testified that the Washington Mutual Bank space at 3051 West 26th Street was closed on May 27, 2013. Mr. Santiago visited the property every day and was last there on May 26, 2013. Mr. Santiago went to the store after he received a call from Walgreens manager Hector Mora. Upon opening the front door of the vacant bank, Mr. Santiago noticed a breach in the wall that revealed a hole extending from the vacant property to the adjacent Walgreens wall. Mr. Santiago walked outside to the rear of the vacant property where he found a number of his tools, including a pair of giant steel pry bars. Mr. Santiago testified that the back door could be pulled out and there would be about “one inch play.” The back door appeared to be tampered with and had marks between the metal plate and the door that were not previously there. ¶ 10 Detective Anthony Pulcanio responded to the scene and also observed the large hole in the wall in the manager’s office and the displaced safe in the adjacent vacant property. Upon seeing cinder-block and drywall damage, Detective Pulcanio surmised that the entry was made from the adjacent property because the displaced drywall and cinder blocks were stacked up in the vacant space. ¶ 11 Detective Pulcanio spoke with Ms. Cuevas and an evidence technician who was also called to the scene. Detective Pulcanio went through the hole in the Walgreens office into the vacant space and walked to the back door, where he observed pry marks and a “lot of play in the door where you could get a screwdriver in there to manipulate the lock.” Detective Pulcanio and his partner, Detective Ken Becker, went outside and located a camera south of the Walgreens, on the Mega Mall building. Detective Pulcanio later watched a video from the early morning hours of May 27 and burned a copy of the video onto a disk. On the video, Detective Pulcanio saw a light-colored SUV driving northbound into the alley behind the Walgreens, followed by an individual walking up to the camera, looking straight up at it, and then using what appeared to be a large PVC pole to change the position of the camera. Detective Pulcanio could not determine the race or even the sex of the person depicted on the videotape, although he believed the person depicted on the video appeared to be “light-skinned.” After taking multiple photographs of the scene, the detectives returned to the 10th District police station. At that time, there were no known suspects. ¶ 12 On May 31, 2013, between 7 and 7:30 a.m., Detective Pulcanio received a call from an unidentified female, who provided him with a lot of information. Detective Pulcanio then prepared a complaint for a search warrant for Robert Padilla and the garden and first floor apartments at 2727 South Trumbull Avenue. The search warrant was approved by Judge Clarence Burch that same day. ¶ 13 In the meantime, Officer Peter Theodore was assigned to surveil defendant’s known address of 2727 South Trumbull Avenue because he was a suspect in the burglary. At about

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11 a.m., Officer Theodore saw defendant exit the front yard of 2727 South Trumbull Avenue holding a white bag. Defendant entered the passenger side of a gray Nissan Sentra, while a female Hispanic person entered on the driver’s side and began driving southbound on Trumbull Avenue. Enforcement Officer Angelo Mandile and his partner followed the Sentra and curbed it at 2830 South Trumbull Avenue after noticing that neither the female driver nor defendant were wearing seat belts. ¶ 14 Officer Mandile approached the passenger side of the Sentra on foot and noticed that defendant was holding a white plastic grocery-type bag in his lap. The bag was open, and Officer Mandile could see that the bag contained a “bundle” of currency that he estimated to have a value of about $1000, along with over a hundred CTA bus cards. Defendant was arrested and taken to the 10th District police station. ¶ 15 Later that day, Officer Gerardo Vega and other officers executed a search warrant at 2727 South Trumbull Avenue. In the front bedroom of the first-floor apartment, Officer Vega recovered three pieces of mail bearing the name of Robert Padilla with an address of 2727 South Trumbull Avenue. One piece of mail, from the Illinois Department of Human Services (DHS), was addressed to defendant at the basement apartment of 2727 South Trumbull Avenue. A second piece of mail, from Citi Visa, was addressed to defendant at 2727 South Trumbull Avenue and did not specify which apartment, and the third, an Illinois Sex Offender Registration Act form contained an address for the first-floor apartment of 2727 South Trumbull Avenue. See 730 ILCS 150/1 et seq. (West 2012). ¶ 16 The officers also searched the separate basement apartment, which had no connecting stairway between the basement and first floor apartments. Detective Pulcanio, who was also present for the execution of the search warrant, observed a black locked Sentry Safe in the basement apartment. The SWAT unit opened the safe, revealing numerous bundles of currency in varying denominations, totaling more than $5000. Some of the money was wrapped in Federal Reserve money bands and some in rubber bands. The safe also contained a tan cloth Federal Reserve money bag that held a loaded blue steel revolver with six live rounds. ¶ 17 The search also revealed 11 CTA bus cards on an end table, in excess of $500 in rolled coins, and two receipts reflecting recent cash purchases from a Home Depot and a Sam’s Club. One of the boxes of coins had a recent stamp indicating that it was from Brink’s. The team also found hundreds of packs of cigarettes, both in cartons and individual packs, a radio scanner set to the 10th District (the same district that both the Walgreens and 2727 South Trumbull Avenue were located within), several walkie-talkies, and a Chicago police jacket. The police also recovered a double large-size acetylene tank, a large-size torch, and a large assortment of tools. ¶ 18 The police also found a brown wallet containing Illinois identification for a male Hispanic person with the name of Richard A. Nunez and an address of 2727 South Trumbull Avenue. ¶ 19 No proof of residency for defendant was found in the basement apartment. ¶ 20 Outside, in the gangway, Detective Pulcanio saw a two-by-two piece of plywood with circular black marks on it that appeared to be burn marks from something hot being dropped onto it. After making this observation, Detective Pulcanio went to the alley directly behind the residence, where he saw a cardboard box for a Sentry Safe in the garbage can. ¶ 21 Detective Pulcanio spoke with Mark Gordon, district manager of the loss prevention department at Walgreens, and gave him a series of numbers from the recovered CTA bus passes to see if they could be traced. One of the serial numbers on a CTA bus pass recovered from the

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basement was 1513787233. Mr. Gordon contacted Mike Thiry from the CTA and provided him with this serial number to see if it could be traced back to the Walgreens at 3045 West 26th Street. ¶ 22 Mr. Thiry testified that CTA passes have unique serial numbers, which are recorded when they are sold. Mr. Thiry told Mr. Gordon that the CTA bus pass bearing the number 1513787233 was part of a shipment of 7-day passes, which were sent to another Walgreens located at 47th Street. Mr. Gordon testified that Walgreens stores will sometimes restock their supply of CTA passes from neighboring stores if their supply is running low. Mr. Gordon learned that the CTA pass bearing serial number 1513787233 was transferred from the Walgreens on 47th Street to the Walgreens at 3045 West 26th Street. ¶ 23 Defendant was charged with one count of being an armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2012)), two counts of unlawful use or possession of a weapon by a felon (id. § 24-1.1(a)), one count of unlawful use or possession of a weapon by a felon (id. § 24-1.1(a)), one count of burglary (id. § 19-1(a)), three counts of theft (id. § 16-1(a)(1)(A)), one count of possession of burglary tools (id. § 19-2), and one count of criminal damage to property (id. § 21-1(a)). ¶ 24 Prior to trial, defendant filed multiple pretrial motions to suppress evidence, which attacked both the legality of his arrest as well as the legality of the search warrant. Extensive litigation followed. An evidentiary hearing was held on defendant’s motion to suppress, which alleged that the police lacked probable cause to arrest him. At the hearing, Officer Mandile testified that he and his partner, Officer Reynaldo Serrato, were working as law enforcement officers on a tactical team on May 31, 2013, at about 11:15 a.m. At that time, defendant’s known address was being surveilled by Officer Theodore. From speaking with Detective Pulcanio, Officer Mandile knew that a burglary had occurred four days earlier at the 26th Street Walgreens and that cigarettes, bus cards, and bundles of cash and coins had been taken. ¶ 25 When Officer Theodore informed Officer Mandile that defendant and a female had entered a silver Nissan Sentra, Officer Mandile and his partner drove to the 2700 block of South Trumbull address and, upon observing that neither occupant of the vehicle was wearing a seat belt, the officers activated their emergency equipment and sirens and pulled over the vehicle. Officer Mandile approached the passenger side of the vehicle, where he saw defendant seated in the passenger seat holding a white plastic grocery-type bag in his lap. Inside the open bag, Officer Mandile saw what appeared to be over a hundred CTA bus cards and a “bundle” of currency. Officer Mandile had defendant exit the vehicle and placed him under arrest. ¶ 26 At the conclusion of Officer Mandile’s testimony, the court granted the State’s motion for a directed finding, ruling that “[t]his arrest was classic probable cause.” ¶ 27 The parties also litigated the sufficiency of the search warrant, which authorized a search of “Robert Padilla age 50 dob: 15-SEP-1962 Male Hispanic IR # 580401,” and the “premises of 2727 S. Trumbull Avenue, Chicago, Illinois, a brick 2-flat building in Chicago Illinois Cook County, garden apartment and 1st floor apartment,” and the seizure of “1-Steel security safe, USC, Cigarettes, CTA Bus Passes, Firearms, Blowtorches, and Tools.” ¶ 28 The complaint for search warrant alleged: “I, Detective Anthony PULCANIO #20471, your affiant, am a Chicago Police Officer, and have been employed as such for 15-years. Your affiant is presently assigned to the Area Central Detective Bureau Robbery/Burglary Unit working out of

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the 10th district at 3315 W. Ogden Ave. I have conduced investigations involving burglaries and robberies from persons and properties. I continue to investigate these cases today. CASE REPORT RD# HW292403 On 27-May-2013, between the hours of 0300 and 0700, unknown individual(s) possibly Hispanic was captured on video by a camera that is affixed to a wall in the alley at 3057 W. 26th Street. The unknown individual was carrying a long piece of PVC piping and used the pipe to push the camera upwards in attempts to prevent video from being recorded in the alley behind Walgreens at 3045 W. 26th Street. Between the hours of 0300 and 0700 unknown individuals entered the unoccupied office space adjacent to Walgreens and proceeded to use unknown tools to break through a cinder block brick and drywall to gain access to the manager’s office which contained 2-safes containing approximately $40,000USC, over a hundred packs of cigarettes, dozens of bus passes and US postage stamps. The unknown individuals gained entry to the larger of 2-safes and removed a second approximately 3-foot high safe from the premises. On today’s date, 31-May-2013, the undersigned received an anonymous phone call from an anonymous female who related that she had been in the basement apartment at 2727 S. Trumbull on 30-May-2013 and had observed the subject Robert PADILLA with an unknown individual counting USC. The anonymous female stated that she heard the number 35,000 during the time that she was in the basement. The anonymous female also stated that she observed a dismantled security safe that PADILLA stated had used a blow torched [sic] to open the safe. The anonymous female also stated that she observed hundreds of packs of cigarettes and numerous amounts of bus passes in the basement apartment as well. The anonymous female stated that she helped PADILLA sell the 30-day bus passes for $50 USC each and would give him the proceeds from the bus pass sales. The anonymous female asked PADILLA for 1-pass so she could take the bus to school during the month to which PADILLA refused her request. The anonymous female stated that she is a close acquaintance of Robert PADILLA and refused to reveal her identity out of fear of PADILLA’s prior murder convictions and gang history with the Latin [K]ings. The anonymous female believes that PADILLA is on parole. The anonymous female also observed a handgun in the basement apartment. Computer revealed that PADILLA is on parole and is paroled to the address of 2727 S. Trumbull Ave. in Chicago Illinois. The anonymous female also heard the unknown individual in the basement apartment with PADILLA ask PADILLA, ‘When are you going to get rid of it.’ The unknown female related that the PADILLA was being asked about the safe to which PADILLA answered, ‘I know bro, I been behind on my s***.’ ” ¶ 29 Multiple motions to suppress the materials recovered from the execution of the search warrant, the details of which will follow, were filed, argued by the respective parties, and rejected by the trial court. ¶ 30 The case proceeded to a bench trial, where, in addition to the foregoing, Ms. Cuevas testified that photographs of the cartons of cigarettes, miscellaneous tobacco items, electronic

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cigarettes, and bus cards recovered by the police from the garden apartment at 2727 South Trumbull Avenue all resembled items typically sold at Walgreens. ¶ 31 Latasha Murphy, a cash vault manager for Fifth Third Bank who oversaw incoming and outgoing deposits for Walgreens, described the manner in which currency was packaged. When a customer orders currency, the currency comes directly from the Federal Reserve bank. The currency is banded with 100 bills placed inside of each strap, regardless of denomination. The straps are made of rubber bands. The currency would then be placed in a clear plastic bag. Coins were bubble wrapped. ¶ 32 The trial court admitted certified convictions of defendant in case number 83-C-10952 for murder, armed violence, aggravated battery, attempted murder, and unlawful use of weapons, for which he was on parole, and an unrelated prior possession of a controlled substance conviction from October 9, 2008. ¶ 33 In finding defendant guilty of all charges except for possession of burglary tools and criminal damage to property, the court articulated the basis for its findings: “The defendant—although there’s no eyewitnesses, the defendant was tied to this burglary, this overnight burglary at Walgreens. And there’s testimony that of the proceeds that were taken out of the Walgreens, after someone broke into the building from an adjoining building and into the manager’s office, there were three safes there. And in one of the safes, according to—I think it was a Giron, Witness Giron, an agent of Walgreens, the first safe contained about $40,000 of working money. The second safe was bus cards and cigarettes. And Ms. Cuevas, from the store manager’s office, testified that she viewed recovered cigarettes, and bus cards, and banded United States currency that was recovered as a result of the investigation of this case, and it was the same type of the cigarettes or the same type of cigarettes they sold. The money was banded in a fashion in which they kept their money coming from the Federal Reserve Bank. It was not loose money. It was banded for commercial distribution. And there were boxed and plastic, bubble-wrapped boxes of coins. The investigation of this matter led to the address of 2727 South Trumbull. A search warrant was executed at that place. And there was a safe, a new safe with a receipt from Sam’s Club for this new safe. There was recovered hundreds of bus cards, and dozens and dozens of boxes of cigarettes, banded money, United States currency, coins, boxes of coins. And also was recovered from that location, 2727 South Trumbull, proof of residency of the defendant, indicating the first floor for that address and the basement for that address where these items were recovered from. The defendant was observed leaving from that address, getting into a gray Nissan. And he stopped a little ways away down the block from 2727 South Trumbull. And in his lap is a plastic bag containing bus cards. These proceeds from this Walgreens were unique. These were unique proceeds. And the defendant is tied—his address is tied to the recovery of these rather unique proceeds. Banded United States money with a band around it. It’s not loose money. It’s the kind of band that the Federal Reserve puts around its money that it distributes to merchants. Hundreds of cartons of cigarettes and bus passes. There was at least one that—the serial number on at least one of the bus cards was tied to being delivered to that Walgreens upon their request. That was from a witness that was from the transit authority, Mr. Thiry, I believe. The Court finds that the evidence in this case is just overwhelming. There is unique—first of all, unique proceeds from this burglary found to be, part of it,

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in the defendant’s lap, and the bulk of it in the defendant’s residence. There’s a finding of guilty as I have stated on the charges that I have stated.” ¶ 34 Defendant then filed a complaint against his attorney with the Attorney Registration and Disciplinary Commission, which prompted his attorney to seek leave to withdraw as counsel. The trial court appointed the Office of the Public Defender to represent defendant on his posttrial claims of ineffective assistance of counsel. The assistant public defender (APD) was given leave to withdraw. Then private counsel, Leslie Starks, was retained to represent defendant on his posttrial motion and for sentencing. When attorney Starks died unexpectedly, the trial court reappointed the Office of the Public Defender to represent defendant. ¶ 35 Thereafter, the trial court determined that it had prematurely appointed counsel to represent defendant on his posttrial allegations of ineffective assistance of counsel and informed the defendant that it was “going to have to correct that” by making an initial inquiry into defendant’s allegations. A preliminary Krankel inquiry followed, where defendant presented his claims and defense counsel responded to the charges (see People v. Krankel, 102 Ill. 2d 181 (1984)). The trial court ruled: “And I certainly can say that this attorney filed multiple amended motions—very careful motions attacking that search warrant. And we had multiple hearing dates on that motion. Multiple. And it was about three to four dates that we heard your motion attacking Judge Burch’s finding of that search warrant. And then there was a motion to quash arrest and suppress evidence. It was—I find, as the jury who presided over your—this case that counsel’s work was very thorough. Very thorough. I find there was no deficiency in—now, after hearing from you and your claims, I find that there is no merit to your claims of ineffective assistance of counsel. And I will not appoint a new counsel to respond to your claims because it’s trial strategy. Whatever occurs—the decision your attorney made was a matter of trial strategy in regard to each of your issues.” ¶ 36 When the court indicated that trial counsel would be reinstated to complete posttrial motions, defendant chose to proceed pro se. He then retained a new attorney, Mr. Dennis Doherty, however Mr. Doherty determined that he had a conflict of interest and enlisted the assistance of attorney Eric Bell. Mr. Bell was only willing to represent defendant at sentencing, so the trial court appointed the Office of the Public Defender to represent defendant on his posttrial motion. Thereafter, defendant was granted leave to discharge attorney Bell, and APD Karin Talwar represented defendant on both his posttrial motion and for sentencing. On a subsequent court date when defendant moved for APD Talwar to be replaced with private appointed counsel, the trial court refused his request. ¶ 37 APD Talwar filed a combined “Motion to Reconsider/Motion for New Trial,” which not only requested a new trial but additionally sought to reopen the trial proofs to admit evidence concerning a similar burglary committed at another Walgreens two weeks prior to this burglary, in which the offenders were described as black men in their twenties. The motion also sought to reopen the proofs in order to permit defendant to call his mother and sister to testify that defendant resided only in the first-floor apartment and that Mr. Nunez rented the basement apartment and to establish that defendant’s mother gave him a large amount of cash the morning of his arrest to make various purchases for her. The motion also alleged that trial counsel’s failure to call any of these witnesses constituted ineffective assistance of counsel. The court denied defendant’s motion.

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¶ 38 After a sentencing hearing, the court sentenced defendant to concurrent sentences of eight years in the Illinois Department of Corrections on the armed habitual criminal count and the burglary count.

¶ 39 II. ANALYSIS ¶ 40 A. Sufficiency of the Evidence ¶ 41 In his first assignment of error, defendant alleges that the evidence was insufficient to sustain his convictions for being an armed habitual criminal and burglary. The due process clause of the fourteenth amendment to the United States Constitution requires that a defendant may not be convicted “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The standard of review on a challenge to the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v. Collins, 106 Ill. 2d 237, 261 (1985). This standard applies in all cases, regardless of the nature of the evidence. People v. Pollock, 202 Ill. 2d 189, 217 (2002). ¶ 42 We will not substitute our judgment for that of the trier of fact, who is charged with assessing the credibility of the witnesses and the weight to be accorded their testimony, resolving conflicts in the evidence, and drawing reasonable inferences therefrom. People v. Hommerson, 399 Ill. App. 3d 405, 411 (2010). A reviewing court may not retry the defendant. People v. Rivera, 166 Ill. 2d 279, 287 (1995). Testimony will only be found insufficient under the Jackson standard where the record compels the conclusion that no reasonable person could accept it beyond a reasonable doubt. People v. Cunningham, 212 Ill. 2d 274, 280 (2004). Stated differently, a defendant’s conviction will be reversed only if the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. People v. Wright, 2017 IL 119561, ¶ 70.

¶ 43 1. The Burglary Conviction ¶ 44 To convict defendant of burglary, the State had to establish that defendant knowingly and without authority entered a building, the property of Walgreens, located at 3045 West 26th Street in Chicago, with the intent to commit therein a theft. The evidence adduced at trial was sufficient to establish that defendant committed burglary. ¶ 45 Criminal possession may be either actual or constructive. People v. Brown, 327 Ill. App. 3d 816, 824 (2002). The standard for reviewing whether the evidence is sufficient to support a criminal conviction is the same whether the evidence is direct or circumstantial. People v. Campbell, 146 Ill. 2d 363, 374 (1992). A defendant’s exclusive and unexplained possession of recently stolen property without more is insufficient to satisfy the reasonable doubt standard. People v. Housby, 84 Ill. 2d 415, 423 (1981). ¶ 46 In Housby, the supreme court articulated a three-part test to be utilized in determining whether a defendant’s exclusive and unexplained possession of recently stolen property will permit an inference that the defendant committed a burglary. Id. at 424. The test requires (1) a rational connection between defendant’s possession of stolen property and his participation in the burglary, (2) a showing that defendant’s guilt of burglary is more likely than not to flow from his unexplained possession of burglary proceeds, and (3) evidence corroborating the

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defendant’s guilt. Id. Identical evidence may be used to satisfy all three prongs of the Housby test. People v. Caban, 251 Ill. App. 3d 1030, 1033 (1993). The inference that a defendant participated in a burglary rises with the proximity in time and place to defendant’s discovered possession of the stolen items. Id. at 1034. ¶ 47 In Caban, the defendant was convicted of residential burglary and theft and challenged the sufficiency of the evidence of his guilt, maintaining that the Housby test was not satisfied where there were insufficient facts establishing a rational connection between the defendant’s possession of the stolen property and participation in the burglary. Id. at 1032. The court rejected the defendant’s claim, concluding that a comparison of the plausibility of the defendant’s explanation of events with the State’s theory of the case allowed the trial court to reasonably conclude that it was more likely than not that the defendant was a participant in the burglary. Id. at 1034. ¶ 48 In People v. Carter, 197 Ill. App. 3d 1043, 1046-47 (1990), the court found that all three parts of the Housby test were satisfied where the defendant was apprehended in close proximity to the site of the burglary shortly after its discovery, where he gave an implausible alternative explanation, and where he was bleeding when he was apprehended by the police. ¶ 49 In People v. Moore, 98 Ill. App. 3d 507, 514 (1981), the court rejected the defendants’ claim that the trial court improperly presumed that their possession of recently stolen property was sufficient to find them guilty of burglary. The court concluded that the Housby test was satisfied where the burglary was committed shortly before the defendants were found in close proximity to the site of the burglary, where they had recent unexplained and exclusive possession of proceeds from the burglary, and where their conduct tended to show consciousness of guilt. Id. at 511-13. The trial court’s findings demonstrated “that the trial court did not blindly apply the presumption in question” but properly analyzed the evidence, thereby satisfying the requirements of Housby. Id. at 513-14. ¶ 50 Here too, the trial court’s explicit findings of fact satisfied the requirements of Housby, where, in finding the evidence “just overwhelming,” the court relied not only on evidence recovered in the basement apartment pursuant to the search warrant but, critically, on defendant’s actual possession of over 100 CTA bus passes that he held on his lap in the car, moments after leaving his home. The trial court had a sufficient basis for finding the CTA bus passes in defendant’s actual possession to be “unique” based on their sheer volume. While a handful of CTA bus passes might not be remarkable, the trial court could properly determine that over a hundred CTA bus passes contained in an open plastic bag were indeed unique. Of additional significance was the fact that the same bag contained approximately $1000 that was not loose but “banded.” ¶ 51 The property in defendant’s actual possession was but a microcosm of what was found in the basement apartment. Additional CTA bus passes, one of which was proven to originate from the burglarized Walgreens, provided additional support for the court to conclude that defendant committed the burglary. The inference was further heightened by the fact that the monies found in the safe still bore Federal Reserve packaging. That such a massive quantity of contraband matching the description of what was stolen was found just four days after the burglary also assisted in meeting the requirements of Housby. Additionally, we take judicial notice of the fact that defendant’s residence is less than a mile from the burglarized Walgreens. Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177-78 (2003); People v. Rojas, 359 Ill. App. 3d 392, 409 n.1 (2005).

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¶ 52 Other items recovered from the basement established a rational connection between defendant’s possession of the stolen property and his participation in the burglary, making such possession more likely than not to flow from his unexplained possession of burglary proceeds. These items included a police scanner which was pre-set to the channel for the 10th District where both defendant’s home and the burglarized Walgreens were located, several walkie- talkies, a Chicago police jacket, a piece of plywood bearing circular black marks that appeared to be burn marks, a double large-size acetylene tank, a large-size torch, and a large assortment of tools. The foregoing items, which could have been used to gain access to the Walgreens as well as to the contents of the safes, all established a rational connection between defendant’s possession of the stolen property and his participation in the burglary, showed that defendant’s guilt of burglary more likely than not flowed from his unexplained possession of burglary proceeds, and generally corroborated defendant’s guilt. See People v. Flowers, 111 Ill. App. 3d 348, 355 (1982) (rational connection between the defendant’s possession of stolen property and burglary established where he possessed tools that could have been used to make the forcible entry). ¶ 53 Finally, while defendant urges us to reject the State’s reliance on the DHS letter recovered from the first-floor apartment bearing defendant’s address including the basement apartment, alleging that the State’s theory of the case has changed from trial to appeal, defendant supports this claim with the inapposite case of People v. O’Neal, 104 Ill. 2d 399, 407 (1984). O’Neal involved the State taking inconsistent positions before the trial court and on appeal as to the basis for providing a self-defense instruction. This is a reasonable doubt claim, and the standard of review requires that we consider the evidence in the light most favorable to the State. Collins, 106 Ill. 2d at 261. The State was not required to prove that defendant lived in the basement apartment but that he constructively possessed the contraband found in the basement. Such constructive possession was established both by defendant’s actual possession of items matching those found in the basement apartment and by the DHS letter. ¶ 54 We likewise reject defendant’s claim that the sex offender registration form was “more probative” of defendant’s address than the DHS letter. The trier of fact was not required to accept an explanation compatible with defendant’s innocence and elevate it to the status of reasonable doubt. People v. Siguenza-Brito, 235 Ill. 2d 213, 229 (2009). ¶ 55 People v. Smith, 2014 IL App (1st) 123094, is distinguishable. In Smith, no one identified the items found in the defendant’s possession as items taken from the store. In the absence of any evidence connecting the items in the defendant’s possession to the stolen property, the defendant’s admission to possessing stolen property did not “more likely than not” flow from his possession of the stolen property Id. ¶ 14. In contrast, in this case, representatives from Walgreens identified the recovered items as being of the same ilk as those that were stolen. More to the point, the evidence established that one of the recovered CTA bus passes originated from the burglarized Walgreens after it was transferred there from another Walgreens. ¶ 56 In sum, we find that the trial court properly determined that the evidence was sufficient to establish that defendant committed burglary.

¶ 57 2. The Armed Habitual Criminal Conviction ¶ 58 To convict defendant of being an armed habitual criminal, the State had to establish that defendant knowingly or intentionally possessed a firearm, after having been convicted of murder under case number 83-C-10952 and possession of a controlled substance under case

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number 08-CR-8090. The evidence was sufficient to establish defendant’s guilt beyond a reasonable doubt of being an armed habitual criminal. ¶ 59 Criminal possession may be either actual or constructive. Brown, 327 Ill. App. 3d at 824. When possession is constructive, the State must prove that the defendant had knowledge of the presence of the weapon and had immediate and exclusive control over the area where the weapon was found. People v. McCarter, 339 Ill. App. 3d 876, 879 (2003). Knowledge and possession are questions of fact to be resolved by the trier of fact, whose findings will not be disturbed unless the evidence is so unbelievable, improbable, or palpably contrary to the verdict that it creates a reasonable doubt of guilt. People v. Luckett, 273 Ill. App. 3d 1023, 1033 (1995). A reviewing court must allow all reasonable inferences from the record in favor of the State. Cunningham, 212 Ill. 2d at 280. ¶ 60 Evidence of constructive possession is often proven entirely by circumstantial evidence. Id. Knowledge may be established by a defendant’s acts, declarations, or conduct from which it can be inferred that he knew the contraband existed in the place where it was found. People v. Ross, 407 Ill. App. 3d 931, 936 (2011). Control is established when a person has the intent and capability to maintain control and dominion over an item even if he lacks personal present dominion over it. People v. Frieberg, 147 Ill. 2d 326, 361 (1992); People v. Spencer, 2012 IL App (1st) 102094, ¶ 17. Control over the area where contraband is found gives rise to an inference that the defendant possessed the contraband. McCarter, 339 Ill. App. 3d at 879. ¶ 61 The same evidence establishing defendant’s constructive possession of proceeds from the burglary also establishes his constructive possession of the loaded blue steel revolver. That the revolver was inextricably linked to the proceeds of the burglary was made manifest by the fact that the revolver was found in the safe enclosed in a Federal Reserve bag alongside both bundles of cash that were wrapped in Federal Reserve money bands and boxed and bubble- wrapped coins. As is the case with the burglary charge, the DHS letter provided additional circumstantial evidence that defendant constructively possessed the revolver. ¶ 62 The recovery of proof of residency for Richard Nunez did not undermine the sufficiency of the evidence that established defendant’s constructive possession of the revolver. “Mere access by other persons to the area where the contraband is found does not defeat constructive possession.” People v. Dismuke, 2017 IL App (2d) 141203 (citing People v. Scott, 152 Ill. App. 3d 868, 871 (1987)). A person may constructively possess contraband even if that possession is joint. People v. Spencer, 2016 IL App (1st) 151254, ¶ 25. ¶ 63 Defendant misplaces reliance on People v. Fernandez, 2016 IL App (1st) 141667, and People v. Natal, 368 Ill. App. 3d 262 (2006), to support his claim. In Fernandez, no evidence connected the defendant to the address where a handgun was recovered. The court noted that evidence of residency often is demonstrated by rent receipts, utility bills, or mail. Fernandez, 2016 IL App (1st) 141667, ¶ 19. While the recovery of the defendant’s passport established that the defendant had some connection with the residence, no evidence placed him in the residence on any date, and the fact that the weapon was concealed under a mattress undercut the inference that he had knowledge of the presence of the gun. Id. ¶ 22. ¶ 64 In Natal, in applying the Housby test, the court concluded that the defendant’s recent possession of stolen property did not make it “more likely than not” that the defendant committed residential burglary, where there was no corroborating evidence of the defendant’s guilt, where recovered fingerprint evidence did not match the defendant, and where the

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defendant testified and offered a reasonable explanation for his possession of the items. 368 Ill. App. 3d at 269-71. ¶ 65 Here, the evidence established defendant’s control and knowledge of the revolver where, in addition to the DHS letter, defendant actually possessed proceeds from the burglary, which mirrored the proceeds recovered from the basement apartment. The connection between the gun and the monies in the safe was clear where both bore identifiers from the Federal Reserve bank. To the extent that the recovered proof of residency left any outstanding question as to whether defendant resided in either the basement apartment, the first-floor apartment, or both, the fact remains that the evidence was sufficient to corroborate defendant’s knowledge and control over the contraband contained in the basement apartment, including the revolver. See People v. Casas, 234 Ill. App. 3d 847, 852-53 (1992) (upholding the defendant’s narcotics conviction despite a dispute at trial as to whether the defendant resided in an abandoned storefront or a rear apartment). The trier of fact was not required to accept an explanation compatible with the defendant’s innocence and elevate it to the status of reasonable doubt. Siguenza-Brito, 235 Ill. 2d at 229. ¶ 66 Based on the foregoing, the evidence was sufficient for the trial court to find defendant guilty of being an armed habitual criminal beyond a reasonable doubt.

¶ 67 B. Ruling on Motion to Suppress ¶ 68 In his next assignment of error, defendant alleges that the trial court erroneously denied his motion to suppress evidence where (1) the complaint for search warrant failed to establish probable cause to search the garden apartment, (2) the complaint for search warrant failed to establish probable cause to search the first-floor apartment, and (3) the good-faith exception did not apply. ¶ 69 Search warrants are presumed valid. Franks v. Delaware, 438 U.S. 154, 171 (1978). The issuance of a search warrant satisfies probable cause when the totality of facts and circumstances known to the affiant are “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). Whether probable cause exists turns on the totality of the circumstances and facts known to the officers and the court when the warrant is applied for. People v. Manzo, 2018 IL 122761, ¶ 29. Application of a totality-of-the-circumstances analysis requires the issuing judge to make “a practical, commonsense decision *** [of] whether there is a fair probability that contraband or evidence *** will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). Hearsay is permissible so long as a substantial basis for crediting the hearsay is presented. Id. at 242. ¶ 70 We review a court’s ruling on a motion to quash a search warrant and suppress evidence using a bifurcated standard of review. People v. Pitts, 2016 IL App (1st) 132205, ¶ 42. We will reverse a trial court’s findings of fact only if they are against the manifest weight of the evidence and then review de novo the court’s ultimate decision granting or denying the motion. Id. A reviewing court may not substitute its judgment for that of the issuing judge but must decide whether the judge had a substantial basis for concluding that probable cause existed. People v. McCarty, 223 Ill. 2d 109, 153 (2006). Determining whether probable cause exists is governed by commonsense considerations that are factual and practical, rather than by technical rules. Manzo, 2018 IL 122761, ¶ 30.

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¶ 71 Determining whether probable cause supported the issuance of a search warrant begins with an examination of the sufficiency of the affidavit. “[P]robable cause means simply that the totality of the facts and circumstances within the knowledge of the affiant when the warrant was sought 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.” Griffin, 178 Ill. 2d at 77. A search warrant’s supporting affidavit is presumptively valid. Franks, 438 U.S. at 171. 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). Such inquiry turns on “the totality of the circumstances and facts known to the officers and court when the warrant is applied for.” People v. Free, 94 Ill. 2d 378, 400 (1983). “[T]he resolution of doubtful or marginal cases should largely be determined by the preference to be accorded to the warrants.” (Internal quotation marks omitted.) People v. Stewart, 104 Ill. 2d 463, 477 (1984). If a complaint provides a substantial basis for the issuing judge’s probable cause finding, we will affirm the trial court’s denial of a defendant’s motion to quash and suppress. People v. Reyes, 2020 IL App (2d) 170379, ¶ 49. ¶ 72 In order to properly clarify the scope of our review, we begin by providing a detailed factual account of the extensive litigation that occurred below. On April 14, 2014, defendant filed an initial motion to quash arrest and suppress evidence, which alleged that (1) the police lacked probable cause to arrest defendant and (2) the search warrant was misleading and false where there was neither a showing that the “informant” was reliable nor a description of when the informant saw the revolver. On May 22, 2014, after the parties agreed that the first part of defendant’s motion required an evidentiary hearing, they proceeded to address the second part of defendant’s motion. Defendant maintained that the anonymous source was not proven to be reliable and that her representations were insufficient to establish probable cause where she did not see any illegal activity. Additionally, defendant argued: “DEFENSE COUNSEL: The police—all the police do is they confirm that there is a Robert Padilla that lives at that apartment and he is on parole, and so all of that is information that is available from—I guess from the Illinois Department of Corrections. They could certainly say where—if a person is on parole, the police apparently have access to his parole address, but other than that—and his parole address is to the first floor and not to the garden apartment. There is no corroboration that any of these items exist in that basement apartment. There is no corroboration that Mr. Padilla actually lived in the basement apartment or went into the basement apartment or had access to the basement apartment, and so the police went to the Judge with some observations from an anonymous source that has no track record, from an anonymous source from which nothing was corroborated. There was no probable cause for the Judge to issue a warrant based on those facts.” ¶ 73 Defendant admitted that probable cause could have been based on the anonymous source seeing a revolver in the apartment where he was on parole. He maintained, however, that the representation was misleading in light of a supplemental police report, which clarified that defendant had displayed the revolver to the informant on a “prior” occasion. Defendant maintained that, without this “misleading” information, the revolver would not have provided probable cause for the issuing judge to sign the warrant. ¶ 74 The State maintained that Detective Pulcanio received information from a “confidential informant” who wished to remain anonymous out of fear and that her representations

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corresponded to what was taken in the burglary three days earlier. The confidential information provided defendant’s name and parole status, which was verified by Detective Pulcanio. Defendant’s address was 2727 South Trumbull Avenue. The State maintained that the anonymous female observed a handgun in the basement apartment on May 30. The $35,000 referenced by defendant “matched up with what was taken from the burglary,” as did the bus passes and the cigarettes. ¶ 75 The court reserved ruling and allowed the parties an opportunity to submit written memoranda. That portion of the motion to suppress that was based on the legality of the arrest was continued for an evidentiary hearing. ¶ 76 Two weeks later, on June 5, 2014, defendant filed an amended motion to suppress evidence (first amended motion to suppress), in which he again maintained that he was arrested in the absence of probable cause. With respect to the search warrant, defendant alleged that the issuing judge was given no information to establish the reliability of the anonymous informant. Defendant again admitted that the police verified that defendant was on parole “at the supplied address” but now alleged that there was no probable cause to search the first-floor apartment where the complaint did not provide probable cause to believe that any contraband was located there. Defendant likened his case to that of People v. Lenyoun, 402 Ill. App. 3d 787 (2010). ¶ 77 The State filed a written response on July 7, 2014, maintaining that just three days after the burglary, the anonymous informant provided detailed information of what she observed in the basement apartment of 2727 South Trumbull, less than a mile from where the burglary occurred, and that her description of the contraband matched the description of the proceeds taken from Walgreens. The informant further informed the police that defendant was on parole. The State maintained that Detective Pulcanio followed up on this information and learned that defendant was in fact paroled to that address. Finally, the State argued that, even if there was not sufficient probable cause to support the issuance of the warrant, the good-faith exception applied to prevent application of the exclusionary rule. ¶ 78 Defendant filed a written reply on July 22, 2014. The reply reiterated the claims contained in the first amended motion to suppress and additionally claimed that the good-faith exception did not apply because the complaint was misleading when the contents of the complaint were compared with the contents of a supplemental police report. Specifically, in addition to relying on the argument previously made in his initial motion to suppress concerning the complaint’s reference to the handgun omitting the fact that this occurred on a “a prior date,” defendant provided two additional inconsistencies between the supplemental police report and the complaint for search warrant that made the good-faith exception to the exclusionary rule inapplicable. First, while the complaint referenced the fact that the offender was “possibly Hispanic,” the supplemental police report did not contain this assertion and indicated that the video was too poor in quality to even determine the make and model of the car depicted therein. Second, defendant maintained that the supplemental police report did not state that the Walgreens manager’s office contained over a hundred packs of cigarettes prior to the burglary. ¶ 79 On August 28, 2014, 2 after again agreeing that a future evidentiary hearing was required to address that portion of defendant’s amended motion that challenged the legality of his arrest, the parties resumed litigating the sufficiency of the warrant. Defendant restated the arguments