After investigators knocked on the door of Isidoro Guerrero Jr.’s West Chicago home in January 1997 and he let them in, they found about 35 grams of cocaine, lab scales, plastic bags and other evidence suggesting that he was a drug dealer. A few hours later, he signed a confession.
Charged with unlawful possession with intent to deliver cocaine, Guerrero faced a minimum prison sentence of 6 years if convicted. But at a pretrial hearing, a judge agreed with Guerrero’s claim that he was coerced into allowing police inside his home.
The judge tossed the evidence, and prosecutors dropped the charges, with sad results: Three years later, Guerrero beat his girlfriend to death.
Guerrero’s case illustrates the complications of so-called consent searches, in which a person agrees to allow a police to search a home without a warrant. In a larger sense, the case also shows how delicate is the balance between convicting someone who committed a crime and upholding individual rights and the integrity of the criminal justice system–and the occasional high price of preserving that integrity.
“These cases are the poster children for cutting back on the procedural rights of defendants,” said Harold Krent, dean of Chicago-Kent College of Law and an expert on search-and-seizure law.
Consent searches, by some estimates, account for 90 percent of all police searches. By local police to U.S. Drug Enforcement Administration agents, hundreds, if not thousands, of consent searches are conducted every day across the country.
“I’m continually amazed at how stupid people are that they let the cops in,” said Kathleen Colton, a seasoned defense lawyer who represented Guerrero in the murder case.
Krent called consent searches “an interesting psychological phenomenon. If you talk to law-enforcement officials, you’d be amazed at how often people consent to a search.”
The reasons vary, Krent and others said. People panic or are unsophisticated or speak English poorly. Perhaps they feel they have no choice. But the protection against unreasonable search and seizure is a right so fundamental in the U.S. that it is one of the Bill of Rights.
But criminals hide behind those rights, authorities contend, and investigators over the years have refined their skills at persuading a person to allow a search without a warrant. In classes on the technique, police officers are told to speak softly, enlist the person’s help and ask to take a look around just to appease a boss back at the station. It’s a practice full of subtleties.
Authority exploited
Most times, it works and helps speed an investigation. But DePaul University law professor Leonard Cavise, a specialist in criminal procedural law, said police routinely exploit their authority.
“Usually, they just go in,” even if someone refuses, Cavise said. In addition, police officers have no obligation to tell the individual he doesn’t have to consent to the search, Cavise said.
“It’s an inherently coercive situation,” he said. And when defense attorneys later challenge the search, “it takes a tremendous amount of courage for a trial judge to look a prosecutor in the eye and say, `I believe this defendant, and I don’t believe this police officer.’ “
“When it’s a one-on-one, the police win,” he said, “especially if, after the search, they find a whole bunch of good stuff.”
In Guerrero’s 1997 drug-trafficking case, DuPage County Circuit Judge George Bakalis sensed that obtaining the consent search was more coercion than cooperation.
Guerrero’s lawyer argued that Guerrero initially had denied drugs were in the house and that three officers who entered his home told him he could either consent to a search or have the place torn up by police dogs.
In his ruling, Bakalis noted that, apart from the officers’ arguably intimidating presence, they used two arrest warrants on traffic violations to get into the home and conduct a pat-down search. He added that Guerrero was not advised of his rights to refuse the search.
“Clearly, the police went to the defendant’s home for the purpose of finding a reason to search the home,” the judge said in a ruling filed June 27, 1997. “The court believes that they would not have gone there with that intent and then have been easily deterred from using various strategies to obtain the consent. It is clear that no probable cause existed to obtain a [search] warrant, and therefore other means were necessary if the police were going to be successful in obtaining a consent to search.”
Although Guerrero, like many defendants, was released only to commit another serious crime, his 1997 case had its share of qualifying factors.
At the time prosecutors dropped drug-trafficking charges against him, Guerrero was probably months from trial, during which time he could have reached a plea agreement or been the beneficiary of another ruling that scuttled the prosecutor’s case. He could have been acquitted at trial.
And if he had been convicted, he probably would have served about 3 years in prison and might have been out by Oct. 29, 2000. That was when a West Chicago police officer found Guerrero, blood on his hands, shirt and shorts, standing on Parkside Street.
Hours after that, Guerrero led police to a field near Aurora where he had dumped the bludgeoned body of Carrie Carlsen, 27, of Aurora, whom he had met in mid-1999. Police allege Guerrero beat Carlsen to death in his car in Batavia as they quarreled. He was sentenced late last year to 38 years in prison.
Prosecutors say Guerrero’s legal odyssey is common. Studies show that defendants released on procedural grounds routinely commit other crimes.
“The chances are the person engaged in drug trafficking who gets away with it is going to continue to engage in it,” said Loyola University Chicago law professor Alan Raphael, who teaches criminal procedural law.
No blame for judge
No one involved with Guerrero’s cases blames Bakalis, who has presided over some of DuPage’s notorious criminal trials and routinely receives high ratings from bar associations.
A judge since 1990, Bakalis is considered one of the more moderate jurists in a circuit many see as pro-prosecution. He most recently handled the protracted and complicated murder case of Marilyn Lemak, the Naperville woman convicted in December 2001 of drugging and suffocating her three young children.
“The judge, whether we agree with him or not, interpreted the statutes a certain way,” said First Assistant DuPage County State’s Atty. John Kinsella. “Certainly, no one could ever predict what the future would bring.”
He noted that defense lawyers routinely ask judges to toss evidence seized in consent searches, arguing, as did Guerrero’s attorney, that the consent was given only after some heavy-handed police tactics.
“This is certainly not an uncommon issue with consent searches,” Kinsella added, noting that prosecutors “win more than we lose” in legal arguments about the searches. “It’s not always a simple issue, but often it comes down to a question of credibility.”
Colton, Guerrero’s attorney, agreed that consent searches, known in police vernacular as “knock and talk,” are “generally upheld” in court, a belief also held by other legal experts.
But occasionally, as in Guerrero’s case, judges determine the compromise to the integrity of the justice system is too great, even if a defendant pointed investigators to 35 grams of cocaine and drug-trafficking paraphernalia in the house.
“It’s part of an ongoing debate,” Krent said.
As examples, he offered the concepts of torture and truth serum. Most people view torture as an unacceptable breach of the justice system’s integrity. But truth serum, if it worked, would be far more acceptable, he said.
“When it gets down to lesser procedural protections, then people are not as certain about this tradeoff,” Krent said.
