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People v. Mathes

OPINION FILED MARCH 14, 1979.

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

v.

DANIEL MATHES, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Will County; the Hon. CHARLES P. CONNOR, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Defendant Daniel Mathes appeals from a conviction for the unlawful possession of a controlled substance (heroin) following a bench trial in the Circuit Court of Will County. The defendant was sentenced to a term of from 1 to 3 years in the penitentiary for possession of less than 30 grams of heroin found in the search of a Joliet apartment. On appeal, the defense argues (1) that the heroin ought to have been suppressed because the search warrant for the premises was not executed in a reasonable manner and (2) that the conviction ought to be reversed and a new trial granted because the defendant was deprived of effective assistance of counsel due to a per se conflict of interest existing in the public defender's dual representation of Mathes and a co-defendant.

The record, in pertinent part, discloses that members of the Metropolitan Area Narcotics Squad had obtained a search warrant for 205 Lincoln Street in Joliet, specifically, the second floor apartment in a building at 205 Lincoln Street. The search warrant authorized police to search for narcotics at the residence. The building had two entrances, one numbered 207 and the other unnumbered. The drug agents arrived at the building around noon on February 5, 1977. One agent covered the rear entrances while the other seven agents positioned themselves near the unnumbered entrance, presumed to be the entrance to 205 Lincoln Street. That entrance contained an aluminum storm door and a locked wooden door. There were four doorbells at the entrance although none had names on them. One agent, standing on the front porch, twice announced over a bullhorn, "Police officers. We have a search warrant for the residence." At about the same time as the amplified announcements were being given, the other officers were shouting, "Police officers!" In addition to these verbal announcements, other agents were knocking on the wooden door at the entrance to 205 Lincoln. No response was made by the persons within the premises to any of these actions by the officers. After two announcements had been made over the bullhorn, and approximately 15 seconds from the first announcement, the officers on the front porch began pounding on the door with sledge hammers. Apparently because of the solid wood nature of the door, it took them some 20 seconds to effect an entry into the premises. Once inside, they found a stairway leading to the second floor and two doors at the top of the stairs. The officers went up the stairs and found one door open and Frank Grady, a co-defendant found not guilty at the trial, sitting in the room watching television. The other door at the top of the stairway was locked. This door was forced open and the agents found themselves in the hallway leading to the other rooms of the second floor apartment. It was in the hallway that defendant Daniel Mathes was apprehended.

The police found no narcotics on either Grady or Mathes, but a search of the rooms off the hallways turned up three tin foil packets containing heroin, which narcotics formed the basis for Mathes' conviction. It was not conclusively established who had rented the apartment. Mathes claimed that he was there to do cleaning and remodeling for one Thomas Fant and that Fant had given him a key so that he could get in to do the work. The State attempted to show that clothing found in the apartment was that of the defendant Mathes. At the close of evidence in the bench trial, the court found that the defendant Mathes, being in possession of the key and present within the locked portions of the apartment where the heroin was found, was at least left in custody of the drugs. It found him guilty of possession and sentenced him to 1 to 3 years. Further factual matters, pertinent to the alleged conflict of interest, will be set forth later in the opinion during a discussion of that issue.

With respect to the suppression issue, the defense claims that the heroin found in the apartment and introduced into evidence against Mathes ought to have been suppressed because the police violated the "knock and announce" rule by forcibly entering the premises before giving the occupants a chance to respond to their announcements.

It is established that unreasonableness in the manner of executing a search warrant may require the suppression of evidence seized and that the question of the reasonableness of a search must be determined on the facts and circumstances of each case. (Ker v. California (1963), 374 U.S. 23, 10 L.Ed.2d 726, 83 S.Ct. 1623.) Police conduct in announcing or failing to announce their authority and purpose prior to entry is one factor in assessing the reasonableness of an entry and subsequent search. As regards the requirement that police knock and announce their presence and purpose prior to entry, this court stated in People v. Boykin (3d Dist. 1978), 65 Ill. App.3d 738, 740-41, 382 N.E.2d 1369:

"Generally, absent exigent circumstances, when officers are executing a search warrant, they are expected to announce their authority and purpose prior to entering the premises to be searched. Implied in this general rule is the assumption that a person within be given time to respond. * * * It is noted, however, that the `knock and announce' rule is not constitutionally mandated (People v. Wolgemuth (1977), 69 Ill.2d 154, 370 N.E.2d 1067) nor is it required by statute in Illinois. It has also been recognized that the presence of exigent circumstances may relieve police officers of the knock and announce requirement. (People v. Britz (3d Dist. 1976), 39 Ill. App.3d 200, 349 N.E.2d 418; People v. Jackson (4th Dist. 1976), 37 Ill. App.3d 279, 345 N.E.2d 509.) Clearly, the presence of exigent circumstances is as important and relevant to the question of the amount of time an officer ought to wait prior to entering forcibly as it is to the question of whether he needs to even announce his authority and purpose prior to entry."

In Boykin we found that police announcements followed by suspicious noises from within provided sufficient exigent circumstances to justify a forcible entry some ten seconds after the giving of the announcements. As mentioned in that case, no rigid rule, establishing what is a reasonable amount of time for officers to wait, is applicable. The facts and circumstances of each case must be examined in making a determination as to reasonableness.

In the present case, the police had a warrant to search for drugs in the second floor apartment at 205 Lincoln Street, Joliet, Illinois. They arrived at the residence around noon on a February day. After positioning themselves at both entrances, the police gave loud oral announcements as to authority and purpose. One officer, standing on the front porch, twice announced over a bullhorn that they were police officers who had a search warrant for the premises. In addition to the amplified announcements, the other officers shouted their presence and repeatedly knocked on the wooden door. After waiting somewhere around 15 seconds from the first announcement, during which time the officers received no response at all from within, they began attempts to forcibly enter through the front door. They actually entered the premises some 35 seconds after the initial announcement, apparently encountering some difficulty in breaking down the wooden door.

• 1 We agree with the trial court that the manner of entry, under the circumstances, was reasonable. First, more than sufficient announcement was made by the police in this case. Not only were two amplified announcements made indicating police presence and purpose, but other officers shouted their presence and, also, knocked on the door. The police were justified in fearing that the suspected drugs were being concealed or destroyed by those within the apartment where no response at all was made from within during or after the announcements. The ease with which narcotics can be concealed or destroyed has often been commented upon by this court and others. (People v. Campbell (3d Dist. 1979), 67 Ill. App.3d 748, 385 N.E.2d 171; People v. Pugh (1st Dist. 1966), 69 Ill. App.2d 312, 217 N.E.2d 557.) We note that the warrant was executed around noon on a Saturday, and not during the late night or early morning, a time when such lack of response from within would be more consistent with innocent activity.

The defense reliance upon our opinion in People v. Ouellette (3d Dist. 1978), 57 Ill. App.3d 249, 373 N.E.2d 114, is misplaced. Ouellette was a consolidated appeal involving forcible entries by police without any announcements at all. In one case, the police, based upon unsubstantiated suspicions that the defendant was armed and dangerous, forcibly entered his apartment in the late hours of the evening without prior announcement. In the other case, there was a similar unannounced forcible entry without adequate justification in the record. 57 Ill. App.3d 249, 254-55.

• 2 In People v. Boykin, discussed previously, we upheld a forcible entry, seconds after the required announcements were given, where the record indicated the police heard scuffling noises from within. The defense argues that in the present case, no similar testimony as to noises or movement from within was given by the officers and that, therefore, no exigent circumstances were present. Such argument overlooks the total lack of response from within despite sufficient announcement by the police. It also overlooks the fact that the police were in no position to observe or notice activity within, since the apartment to be searched was on the second floor of the building. We also note that the police were confronted at the entrance with a wooden door that required almost 20 seconds to break down, even with more than one agent wielding a sledge hammer. The difficulty presented by the door in effecting a speedy entry to prevent possible concealment or destruction of drugs is a fact which could not have gone unnoticed by the police prior to entry. When all the facts and circumstances surrounding the execution of the warrant are considered, it is apparent that the entry by police in this case was reasonable. We conclude that no error requiring reversal was committed by the trial court in denying the defense motion to suppress.

The second issue raised by the defense is whether a per se conflict of interest existed because of the public defender's representation of co-defendants Mathes and Grady. Appellate counsel for Mathes argue that the defenses of the two men were antagonistic and that the public defender could not adequately represent both. It is contended that such conflict of interest deprived Mathes of the effective assistance of counsel. Before addressing the substance of this issue, however, we are met by the State's assertion that the issue has been waived because of a failure to raise it below. Reliance is placed upon People v. Precup (1978), 73 Ill.2d 7, 382 N.E.2d 227.

In Precup the supreme court held that a conflict of interest issue, raised for the first time on appeal, had been waived by the defendants. The case involved co-defendants represented by the same public defender, and the alleged conflict lay in the presence of conflicting alibis. While conceding that separate counsel would have had to have been appointed if the issue had been brought to the attention of the trial court, the court found that it had been waived where it was not included in the defendant's post-trial motion or otherwise brought to the court's attention. (People v. Precup (1978), 73 Ill.2d 7, 19.) The court noted that neither defense counsel nor the defendants raised any objection to joint representation before or during trial. This lack of objection, coupled with the failure to raise the issue in the post-trial motion, was ...


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