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People v. Schlemm

OPINION FILED MARCH 20, 1980.

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

v.

JIMMIE LEE SCHLEMM, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Menard County; the Hon. LYLE E. LIPE, Judge, presiding.

MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

Defendant, Jimmie Lee Schlemm, was convicted by the circuit court of Menard County of two counts of murder and two counts of concealment of homicide. Defendant was sentenced to 38 years for each murder and 10 years for each concealment, with all sentences running consecutively. On appeal he asserts error in the trial court's (1) refusal to suppress evidence seized during various searches, (2) admission of evidence previously ordered suppressed, (3) imposition of consecutive sentences, and (4) imposition of extended terms of imprisonment for the two convictions of concealment of a homicide.

Charges against defendant for the murders and concealment of the homicidal deaths of Eugene Ferry and John Teeter were filed on June 5 and 8, 1978, respectively. A jury trial concerning all of the charges began on November 20, 1978. There evidence was presented that the two men had been missing from March 20, 1978, until their bodies were found tied to bricks at the bottom of the Sangamon River. Ferry's body was found on April 9, 1978, but Teeter's was not discovered until June 6, 1978.

Proof of defendant's guilt was all circumstantial. A law enforcement officer testified at trial that on April 11, 1978, he searched a trailer where defendant had been living and found (1) bullet holes in the trailer, (2) blood stains and human hair on the floor, both later shown to be similar to that of Teeter, and (3) possessions later shown to have belonged to Ferry. He also identified microphones and microphone cords as having been found in the trailer. These cords resembled those tying Ferry's body in the river. A police technician testified that a cord found on that body was able to make an electrical connection to one of the microphones only because solder had been placed on the plug. The technician also stated that the socket on the microphone showed tool marks corresponding to the tool used to modify the plug on the cord but could not positively state that the same tool left both impressions. Evidence was also presented that many of the victims' personal effects and clothing were found in the search of the house of an aunt of defendant, where defendant had been staying.

In addition to the evidence found in the searches, several other pieces of evidence linked defendant to the murders. Defendant's own testimony, as well as the testimony of other witnesses, indicated that defendant (1) drove Teeter's rented car from Springfield to Jacksonville, Illinois, and abandoned it there the morning after Teeter and Ferry disappeared (although an attempt had been made to sponge down the car, it still had a putrid odor and was found to contain human blood and hair specimens), (2) had fired his gun on the bloodstained Cascade Bridge which was located near the place where the bodies were found, and (3) had given his attorney a tooth belonging to Teeter which his attorney in turn gave to police officers.

In his testimony, defendant stated that (1) shells from his gun were found on the Cascade Bridge merely because he had done some target shooting there; (2) he did not know how Teeter's tooth got in his trailer; (3) the bullet holes in his home were the result of an accidental misfire; (4) he was merely storing the personal effects of Teeter and Ferry as they had asked him to do; and (5) he had attempted to get rid of the car only because an individual named "D.C." had paid him to do so. Witnesses who had been stated by defendant to be friends of "D.C." denied knowing anyone having that name.

Defendant's first claim of error arises from the court's denial in part of his pretrial motion to suppress the evidence seized in searches of the trailer and the house of defendant's aunt.

At the suppression hearing, evidence was presented that after Ferry's body was found police officers were informed by a person they believed to be Ferry's mistress that: (1) she had last seen Ferry and Teeter on March 19, 1978, when they purported to be headed for a meeting with defendant; and (2) she spoke with Ferry on the telephone on March 20, 1978, and he said he had spent the night with defendant. With this information the officers on April 11, 1978, contacted the landlord of defendant's trailer. The landlord testified to the following sequence of events. Defendant who had been in arrears on rent called him on April 10 and said that he, defendant, was moving out that night and would send the landlord the key. The landlord then placed a newspaper advertisement listing the trailer as being for rent. On April 11, the officers requested permission to search the trailer. Upon the landlord's explanation of the situation, the officers told him that he had authority to authorize their entry, so he did. The tenant had not returned the key, but the landlord stated that it was not unusual for departing tenants to fail to do this. As the landlord's key had been given to a repairman, he broke a window and they entered the trailer. Upon entering they were surprised to find that it appeared to be substantially furnished. After a brief view of the interior, the officers stated that they should get a warrant and they all left the trailer. Defendant testified, admitting telling the landlord that he was moving out but said that he told the landlord he would do so at the end of the month.

• 1 A warrant was later obtained and evidence was seized. The trial court suppressed items seized which were not listed in the warrant but refused to suppress those which were so listed. Defendant maintains that all evidence should have been suppressed because the affidavit for the search warrant was insufficient and because, in any event, the search was the fruit of an entry in violation of defendant's fourth amendment rights. We dispose of the first contention summarily. The complaint for the warrant was based upon an officer's statement of seeing bullet holes in the trailer and blood on the floor. Defendant argues that a showing would have to be made that the officer was a ballistics expert for him to identify the holes as bullet holes, citing People v. Fiorita (1930), 339 Ill. 78, 170 N.E. 690, where it was held that a non-ballistics-expert police officer could not make ballistic comparisons at trial. Here, the issue was probable cause, and an ordinary police officer could properly conclude that the holes were made by bullets. The complaint showed probable cause.

• 2 The question of the propriety of the officers' original entry into the trailer and the short search they then conducted presents a more complicated problem. It is well established that during the pendency of a lease a landlord cannot consent to a search of the leased premises, and that apparent authority alone is insufficient for a third party to consent to a warrantless search. (Chapman v. United States (1961), 365 U.S. 610, 5 L.Ed.2d 828, 81 S.Ct. 776; People v. Bankhead (1963), 27 Ill.2d 18, 187 N.E.2d 705; People v. Miller (1968), 40 Ill.2d 154, 238 N.E.2d 407.) But despite this general rule a "common authority doctrine" has emerged, which may be viewed as an exception to the general rule. In United States v. Matlock (1974), 415 U.S. 164, 39 L.Ed.2d 242, 94 S.Ct. 988, it was held that a woman who shared a bedroom with defendant could consent to a search which resulted in the seizure of stolen bank money. The court stated, "[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." (415 U.S. 164, 171, 39 L.Ed.2d 242, 249-50, 94 S.Ct. 988, 993.) The United States Supreme Court went on to explain "common authority" in a footnote where it stated:

"Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, * * * but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the coinhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." 415 U.S. 164, 171 n. 7, 39 L.Ed.2d 242, 250 n. 7, 94 S.Ct. 988, 993 n. 7. Accord, People v. Stacey (1974), 58 Ill.2d 83, 317 N.E.2d 24 (holding a wife could consent to such a search).

As this court has recognized, the common authority must be based upon a genuine understanding between the parties, rather than contrived solely from property notions. In People v. Baughman (1977), 47 Ill. App.3d 209, 361 N.E.2d 1149, this court held the State did not have power to consent to a search of the home which the State bought in anticipation of highway construction, since after the sale the former owners of the house were permitted to remain in the house temporarily by an oral understanding which did not contemplate that the parties would share any degree of common authority.

In the case on appeal, the issue is whether the trial court could properly have found that defendant conferred upon the landlord a common authority to allow others to view the trailer. On this point the trial court found People v. Marino (1972), 5 Ill. App.3d 778, 284 N.E.2d 54, to be controlling. In that case defendant challenged a search warrant which was based upon evidence seized during a consensual search of his former residence. The owner of that residence told police that defendant no longer lived there but still stored some things at that residence, and the owner permitted the police to search. During their search police found that defendant had stored stolen goods there, and upon this information they obtained a search warrant for his new apartment. The warrant was upheld on appeal. Marino stands for the proposition that the owner of property has a right to consent to a search after the parties have agreed to end a tenancy even though the former tenant has not yet removed all of his possessions.

• 3 The trial court could properly have believed the landlord's testimony that defendant told him, he, the defendant, was moving out of the trailer on the night of that conversation. Such an assertion by defendant would not have created exactly the same type of common usage rights to the trailer that existed with reference to the premises in question in Matlock and Marino. But we conclude that such an assertion by defendant would, after the night of the proposed move, confer on the landlord authority to at least enter the trailer and to allow those accompanying him to do so with him. Clearly it would have enabled the landlord to reasonably believe that he had authority to do so. (See Matlock, 415 U.S. 164, 177 n. 14, 39 L.Ed.2d 242, 253 n. 14, 94 S.Ct. 988, 996 n. 14.) The evidence does not indicate that once the landlord and the officers were in the trailer, they took any action other than to view those things such as the blood-stained rug and bullet holes all within their plain sight upon their entering. Upon finding the trailer to be still occupied, the group retreated immediately and obtained a warrant to search the trailer. It is doubtful whether the group's conduct constituted a search. If it did, it would not have exceeded the authority impliedly given by defendant through his telephone conversation with the landlord. The trial court did not err in refusing to suppress the items in question.

The trial court refused to suppress any evidence seized at the home of defendant's aunt. The sole question as to this seizure was the sufficiency of the complaint to support issuance of the warrant. The complaint set forth information showing that (1) defendant was the last person to see the victims; (2) defendant had attempted to dispose of Teeter's blood-spattered car; (3) evidence linking defendant to the crimes had been found in the trailer and at Cascade Bridge; (4) defendant had been seen wearing a coat belonging to Teeter 45 days earlier; (5) his mistress had been given personal effects of the victims 14 days earlier by a friend of defendant who said he was storing them for defendant and asked the mistress to give them to defendant; (5) defendant and his mistress had been living at the aunt's house; (6) Teeter was missing; and (7) the circumstances of finding Ferry's body.

Defendant maintains that the complaint for this warrant failed to set forth that a crime had been committed and showed the information to be too stale to indicate probable cause that evidence of a ...


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