People v. ErvinPeople v. Ervin
Held: Circuit court‘s denial of pretrial release did not constitute an abuse of discretion, where it reasonably determined that the proof was evident and the presumption great that defendant committed a detainable offense and that no set of conditions could mitigate the threat defendant posed to the community. Affirmed.
¶ 1 Defendant, Antonio M. Ervin, appeals from the denial of pretrial release under
¶ 2 I. BACKGROUND
¶ 4 The State attached to its petition the police synopsis, which related as follows. On August 7, 2024, at about 7:37 p.m., an Aurora police special operations group executed a search warrant at the residence at 2930 Heather Lane in Montgomery. (Defendant had been arrested prior to execution of the warrant during a traffic stop after leaving the residence.) During the search of the residence, police found in three bags in a cupboard of a basement bar 320.2 grams of a substance that field-tested positive for cocaine. The street value of the suspected cocaine was $32,000. Also found in the cupboard were two boxes of plastic sandwich baggies (one of which was opened), two working digital scales (one of which had white residue that field-tested positive for cocaine), and a glass measuring cup and a plastic cup (both with white residue that field-tested positive for cocaine). A sign on top of the bar read “Antonio‘s bar.” In a room adjacent to the basement bar area, police found an Olympic Arms MFR rifle and a Magpul PMag 30 magazine with five 5.56
¶ 5 Vito McIntee, defendant‘s father, arrived during the search and agreed to speak to police. He lives with defendant at the residence in the basement bedroom. McIntee never observed firearms or drugs, besides cannabis, in the house. Nor did he know defendant to have any firearms or drugs. McIntee stated that defendant had been to prison for drugs in the past but thought he had been done with dealing drugs.
¶ 6 The State also attached as an exhibit to its petition a pretrial services investigation report. It related that defendant is not married and has a one-year-old child who resides with him at the residence. He does not have family living in the Kendall County area. He will drive himself to future court dates, and records reflected that he had a valid driver‘s license. Defendant reported that he was employed with AME Trucking LLC, and his annual income is $100,000. Defendant had a pending case in Kane County for possession of a controlled substance (other drug-any amount), DUI (alcohol), and DUI (BAC .08 or more).
¶ 7 Defendant‘s criminal history includes, among others, convictions for: manufacture/deliver controlled substance-cocaine (2015; 10 years’ imprisonment); three drug-possession offenses (2010, 2009, and 2007; 30 months‘, 72 months‘, and 24 months’ imprisonment); and aggravated battery/harm/peace officer (two in 2008; 3 years’ imprisonment in each). A pretrial risk assessment identified defendant‘s level of risk of pretrial misconduct as moderate. The pretrial report also noted that, based on a review of defendant‘s criminal history, defendant missed at least
¶ 8 Also included as exhibits to the State‘s petition were photographs of the items in the cupboard, the FN Five-Seven handgun, and the currency, along with a copy of the search warrant. The warrant complaint and affidavit related that, in May 2024, police learned from a confidential informant that defendant was selling cocaine. The informant made three controlled purchases of cocaine from defendant. The informant met defendant in a parking lot and entered a black GMC Sierra (which defendant had driven from his residence) to purchase the cocaine, after which the Sierra drove to defendant‘s residence and defendant exited the vehicle and entered the residence.
¶ 9 On August 9, 2024, the circuit court granted the State‘s petition. The court noted that, based on the police synopsis, pretrial services report, search warrant, and photographs, the State had proved by clear and convincing evidence that the proof was evident and presumption great that defendant committed a detainable offense. It also found that defendant posed a real and present threat to the community, based on evidence that: he was in possession of drugs, ammunition, and firearms; was selling drugs; committed a felony while on release from Kane County; and sold cocaine to a confidential informant three times prior to his arrest. The court also noted that defendant was not allowed to have guns in his home. Finally, the court found that less restrictive conditions would not assure the safety of the community and assure defendant‘s appearance in court. It noted that defendant was on release from Kane County when he allegedly committed the present offenses, and he has a history of drug possession or manufacturing and delivering a controlled substance; release “does not appear to prevent him from doing the same behavior.” He was also allegedly selling/packaging cocaine from his residence. No conditions
¶ 10 On August 16, 2024, defendant filed a motion for relief.
¶ 11 Next, addressing conditions that could mitigate the risk that his pretrial release would pose, defendant sought “house arrest,” specifically GPS monitoring with movement allowed only for purposes of attending court appearances, meeting with his attorneys, and meeting with pretrial services. Defendant noted that he has an in-house security system that includes video surveillance of the property (cameras covering the back yard and front of the garage, plus a doorbell camera), and he noted that he would give police unrestricted access to such surveillance were he placed on
¶ 12 On August 19, 2024, the circuit court denied defendant‘s motion. Granting police access to search defendant‘s house or to review security videos, the court found, would not prevent defendant from selling drugs from the residence. The sheriff‘s office, it noted, did not have the resources to constantly monitor defendant. Addressing defendant‘s child, the court found that residing in defendant‘s home was dangerous for the child, as the cocaine located in the home was not secured in a safe, for example, and the weapon found in the master bedroom closet with a magazine with 33 rounds of ammunition was not in a locked safe. Defendant could have someone else run his trucking business, the court suggested. The court determined that there was no combination of conditions that could alleviate the necessity to detain defendant.
¶ 13 On August 27, 2024, defendant filed a notice of appeal. The Office of the State Appellate Defender declined to file a memorandum pursuant to
¶ 14 II. ANALYSIS
¶ 15 Pretrial release is governed by
¶ 16 We review defendant‘s arguments under a bifurcated standard of review: the court‘s factual determinations are reviewed to determine whether they are against the manifest weight of the evidence, and the court‘s ultimate determination regarding denial of pretrial release is reviewed for an abuse of discretion. People v. Trottier, 2023 IL App (2d) 230317, ¶ 13. An abuse of discretion occurs when the court‘s decision is unreasonable. Id. Likewise, a decision is against the manifest weight of the evidence where the court‘s determination is unreasonable. Id.
¶ 17 Defendant, at best, raised two arguments in his motion for relief. First, he argued that the State did not establish that the proof was evident and the presumption great that he committed a detainable offense. Second, he argued that the State did not show that no condition or combination thereof could mitigate the risk that his pretrial release would pose.
¶ 18 As to the first argument, defendant notes that the cocaine and one of the weapons seized from his residence were in a common area of the property where he resides with an additional adult. The circuit court noted that it based its finding that defendant committed a detainable offense on the police synopsis, pretrial services report, search warrant, and photographs taken during the search. These are proper sources from which to base its findings. For example, a police synopsis constitutes reliable information upon which the State may rely in making its proffer and, further, that synopsis alone may suffice to sustain the State‘s burden. See, e.g.,
¶ 19 Next, turning to his primary contention, defendant argues that the State did not establish that no conditions of release would mitigate the threat he posed. He asserts that any potential danger could be mitigated by GPS monitoring, his in-house security system (to which he would agree to unrestricted access by police), additional surveillance equipment, and police access to his property to conduct a search to ensure no contraband was in the home directly prior to his return to the residence. Where the circuit court finds that the State proved a valid threat to the safety of any person or the community, the court must determine which pretrial release conditions, “if any, will reasonably ensure the appearance of a defendant as required or the safety of any other person or the community and the likelihood of compliance by the defendant with all the conditions of pretrial release.”
¶ 20 In summary, the circuit court did not abuse its discretion in granting the State‘s petition to deny defendant pretrial release.
¶ 21 III. CONCLUSION
¶ 22 For the reasons stated, we affirm the judgment of the circuit court of Kendall County.
¶ 23 Affirmed.
JUSTICE JORGENSEN
APPELLATE COURT JUDGE