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People v. Ouellette

OPINION FILED DECEMBER 20, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

JOSEPH

v.

OUELLETTE ET AL., APPELLEES.



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Kankakee County, the Hons. Roger A. Benson and Wayne P. Dyer, Judges, presiding.

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

In the unrelated narcotics cases of the defendants, Joseph V. Ouellette and Thomas E. Smith, the circuit court of Kankakee County granted the defendants' motions to suppress evidence. On a consolidated appeal, the appellate court affirmed (57 Ill. App.3d 249). We granted the State leave to appeal (65 Ill.2d R. 315(b)). The issue is whether police are required to knock and announce their authority and purpose in the execution of a search warrant for narcotics. Stated another way, the issue is whether there are circumstances which justify police failure to knock and announce their authority and purpose in the execution of a search warrant for narcotics, and which do not violate the fourth amendment's prohibition against unreasonable searches and seizures. This narrow issue has not been decided by this court.

On July 30, 1976, at 7 p.m., a Kankakee police officer was told by an informant, that the informant, within the previous 24 hours, had been in defendant Smith's apartment, where he saw heroin wrapped in tinfoil. Within 3 1/2 hours, a search warrant was issued and executed. It was stipulated that the police did not knock or announce their authority prior to the execution of the warrant. Smith was charged with possession of a controlled substance (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402(b)), possession of cannabis (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 704(a)), and possession of a hypodermic syringe or needle (Ill. Rev. Stat. 1975, ch. 38, par. 22-50). The circuit court granted Smith's motion to suppress the evidence because the failure of the police to knock and announce their authority and purpose was not justified by exigent circumstances.

In Ouellette's case, an informant told a Kankakee police officer that within the previous 24 hours the informant had been on premises occupied by defendant Ouellette and there had seen heroin which Ouellette offered to sell to the informant. That same day, December 13, 1976, a search warrant was issued; it was executed the next day. The evidence indicates the police neither knocked nor announced their authority and purpose prior to their entry to execute the warrant. Ouellette was charged with possession of a controlled substance, possession of cannabis, and possession of a hypodermic needle and syringe. The circuit court granted Ouellette's motion to suppress the evidence because the failure of the police to knock and announce their authority and purpose was "an unreasonable method of searching" under the United States and Illinois constitutions.

The State argues that under existing law an entry to execute a search warrant, without a knock and an announcement, is justified in exigent circumstances. It cites, among other cases, Ker v. California (1963), 374 U.S. 23, 10 L.Ed.2d 726, 83 S.Ct. 1623, and People v. Wolgemuth (1977), 69 Ill.2d 154. The exigent circumstances here, the State maintains, were the ease with which the evidence in both cases — narcotics — could be destroyed; and, in the case of Smith, the concern the police had for their safety if they knocked and identified themselves, since less than two years before they had found Smith in possession of a handgun. The State, in effect, urges us to hold that, where narcotics are involved, exigent circumstances exist per se because narcotics are easily disposed of.

Section 108-8 of the Code of Criminal Procedure of 1963 provides:

"All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to execute a search warrant." (Ill. Rev. Stat. 1975, ch. 38, par. 108-8.)

No statutory requirement of knocking and announcing authority and purpose exists. Hence, the propriety of the entry here must be determined by constitutional considerations. (People v. Hartfield (1968), 94 Ill. App.2d 421, 430-31.) In People v. Wolgemuth (1977), 69 Ill.2d 154, 166, this court recently held that "the mere failure of police to announce their authority and purpose does not per se violate the Constitution, [although] it may influence whether subsequent entry to arrest or search is constitutionally reasonable." Given this and based on the reasoning which follows, we hold that, where exigent circumstances exist, the failure of police to knock and to announce their authority and purpose in the execution of a search warrant for narcotics does not violate the fourth amendment right against unreasonable searches and seizures. We do not, however, agree with the State that the existence of narcotics is, in itself, an exigent circumstance justifying such an intrusion into a defendant's or a suspect's premises.

In Wolgemuth, Rock Island city police, acting on a valid Iowa arrest warrant and after knocking on the defendant's apartment door twice (once for 10 minutes and once for 5 minutes), let themselves in with the owner's pass key. The officers failed to announce their authority and purpose, awakened the occupants, and seized pills which were the evidence the defendant unsuccessfully moved to suppress. Although the appellate court reversed, this court upheld the denial of suppression and the conviction. This court noted that Illinois has no statutory requirement of announcement of authority and purpose; that all "necessary and reasonable force may be used to effect an entry * * * to make an authorized arrest" (Ill. Rev. Stat. 1973, ch. 38, par. 107-5(d)); and that, therefore, the issue before it had to be determined by reference to the fourth amendment. In reaching its conclusion that police announcement was not constitutionally required, the Wolgemuth court analyzed three United States Supreme Court cases, including Ker v. California (1963), 374 U.S. 23, 10 L.Ed.2d 726, 83 S.Ct. 1623.

In Ker, the police had no warrant, did not knock, and did not announce their authority and purpose until after they were inside the apartment. California statutory law required an announcement of purpose prior to forcible entry to arrest. The majority in Ker did not specifically decide whether the Constitution required police to announce their authority and purpose because California law required it. Rather, the Ker majority considered whether the judicially created exceptions to the announcement requirement violated the fourth amendment. The majority found they did not: the defendant possessed narcotics which could be easily destroyed, and his furtive conduct in eluding police prior to arrest led them to believe he was expecting them, making an announcement superfluous. The Ker court found "the criteria under California law clearly include an exception to the notice requirement [i.e., announcement] where exigent circumstances are present." 374 U.S. 23, 39, 10 L.Ed.2d 726, 741, 83 S.Ct. 1623, 1633.

In holding that exigent circumstances may excuse a police announcement or that the failure to announce is not a per se violation of the Constitution, we "do not mean to devalue [the] importance" of the announcement requirement (People v. Wolgemuth (1977), 69 Ill.2d 154, 166). Its purpose is to notify the person inside of the presence of police and of the impending intrusion, give that person time to respond, avoid violence, and protect privacy as much as possible. Yet, as Ker and Wolgemuth illustrate, circumstances — exigent circumstances — may exist which justify the failure to announce authority and purpose in the execution of a search warrant. (Accord, People v. Stephens (1974), 18 Ill. App.3d 817, 821; People v. Richard (1975), 34 Ill. App.3d 621, 625-26; People v. Jackson (1976), 37 Ill. App.3d 279, 283; People v. Conner (1977), 56 Ill. App.3d 565, 567; People v. Conner (1978), 67 Ill. App.3d 133, 135, and dissent in Conner, based on majority's application of the rule, 67 Ill. App.3d 133, 136-41, rev'd (1979), 78 Ill.2d 525. Cf. Dalia v. United States (1979), 441 U.S. 238, 247, 60 L.Ed.2d 177, 186, 99 S.Ct. 1682, 1688; Coolidge v. New Hampshire (1971), 403 U.S. 443, 477-78, 29 L.Ed.2d 564, 589-90, 91 S.Ct. 2022, 2044; Miller v. United States (1958), 357 U.S. 301, 308-10, 2 L.Ed.2d 1332, 1337-39, 78 S.Ct. 1190, 1195-96.) See generally People v. Payton (1978), 45 N.Y.2d 300, 380 N.E.2d 224, 408 N.Y.S.2d 395, probable jurisdiction noted (1978), 439 U.S. 1044, 58 L.Ed.2d 703, 99 S.Ct. 718; United States v. Houle (8th Cir. 1979), 25 Crim L. Rep. 2522; Commonwealth v. Terebieniec (Pa. Super. Ct. 1979), 25 Crim. L. Rep. 2502.) These exigent circumstances may encompass such considerations as danger to the policemen executing the warrant, or the uselessness of the announcement, or the ease with which the evidence may be destroyed. 2 W. LaFave, Search and Seizure 131-38 (1978) (hereafter LaFave).

The last consideration brings us to the State's implied argument that, since narcotics by their nature are easily destroyed, exigent circumstances have been established. We reject such a blanket rule for the reasons stated in People v. Gastelo (1967), 67 Cal.2d 586, 588-89, 432 P.2d 706, 708, 63 Cal.Rptr. 10, 12:

"Neither this court nor the United States Supreme Court has held that unannounced forcible entries may be authorized by a blanket rule based on the type of crime or evidence involved. Indeed in the Ker case the court was divided 4 to 4 on the question whether the evidence offered to ...


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