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People v. Polito

OPINION FILED SEPTEMBER 24, 1976.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

NICHOLAS A. POLITO, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. MARVIN E. ASPEN, Judge, presiding.

MR. PRESIDING JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Defendant was indicted for attempt (rape), rape, deviate sexual assault, and battery in violation of sections 8-4, 11-1, 11-3 and 12-3 of the Criminal Code. (Ill. Rev. Stat. 1969, ch. 38, pars. 8-4, 11-1, 11-3, 12-3.) Prior to trial, defendant filed a motion to suppress certain evidence alleging it was obtained through an unannounced forcible entry of private premises. The motion was sustained and the State now appeals, contending that exigent circumstances excused their method of entry.

At the hearing on the motion to suppress the following pertinent evidence was adduced:

For defendant

Louis Cantone

He is a Chicago police officer. In August, 1969, he was on assignment with the Cook County State's Attorney's Office in charge of the investigation of defendant, a dentist. The complainant, defendant's receptionist, told him that on August 7 and 8, 1969, defendant had sexually molested her in an adjoining office. The alleged attacks occurred while defendant was supposedly extracting one of her teeth and she was unconscious having been drugged and gassed by defendant.

In order to obtain further evidence against defendant, Cantone requested the complainant remain in defendant's employ and submit to further dental work. She agreed. On August 14 she informed him that she had a dental appointment with defendant the following evening. Before she went to defendant's office, he gave her further instructions, and "iridescent" *fn1 powder was applied to certain areas of her body.

He and seven other investigators positioned themselves in and around defendant's office building at 7227 West 127 Street, Palos Heights, on August 15, 1969. Defendant arrived at about 6:30 p.m. Later that evening the complainant, while seated in defendant's office lit a cigarette, which was the pre-arranged signal, indicating she had just been given a pill preparatory to the gas anesthesia. Sometime thereafter, he and the other investigators entered the second floor of the building using a key left by the complainant under the door mat on the first floor landing. After all exits were secured, they proceeded to defendant's office. Finding no one in defendant's reception room, lab or workroom, they went to Paul Hauser's office which adjoined defendant's. Complainant previously had told him that defendant had sexually molested her in Hauser's office. He turned the knob very slowly, but the door did not open. Listening at the door he could hear soft music playing. Without knocking or announcing the officers' presence, Investigator Gehrke broke open the door with a sledge hammer, and they arrested defendant. The arrest took place between 10:15 and 10:45 p.m.

Although he had a warrant for defendant's arrest based on complainant's prior allegations and had seen him 10 to 15 times prior to the arrest, he made no attempt to arrest defendant earlier. Nothing would have prevented him from doing so, however, he "wanted to build a stronger case against him." Although aware of various items he intended to seize in defendant's office, he never attempted to obtain a search warrant.

Harold McGrath

He was a Chicago police officer assigned as a photographer to the State's Attorney's Office. Prior to defendant's arrest on August 15, 1969, he was in the vicinity of defendant's office building for 12 hours. At about 6:30 p.m., he observed defendant enter the building. Although he was aware of a warrant outstanding for defendant's arrest, he did not attempt to arrest him at that time. At approximately 10:15 p.m. he participated in defendant's arrest. Entry was effected by breaking open the door with a sledge hammer. None of the investigators knocked or announced their office before entering. Prior to breaking open the door, he did not hear calls for help or screams. Once inside he took photographs of the premises.

Nicholas Polito, on his own behalf

He was arrested in an office leased by Paul Hauser. Hauser had given him a key and permission to use the office in 1961. Occasionally, he used the office as a recovery room for his patients and he also stored medications and pop in Hauser's refrigerator. He gave complainant authority to let "patients" into any of his offices, as well as Hauser's office, however, he never authorized her to allow anyone else to enter Hauser's office.

At the conclusion of defendant's testimony he sought to quash his arrest and suppress certain evidence, including the following physical evidence ...


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