Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of McLean County,
the Hon. Keith E. Campbell, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
This is an interlocutory appeal from a suppression order of the circuit court of McLean County. (See 73 Ill.2d R. 604(a)(1).) The appellate court affirmed (58 Ill. App.3d 54), and we allowed the State's petition for leave to appeal. We have held the case under advisement pending the United States Supreme Court's decision in Payton v. New York (1980), 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371, holding that the warrantless, nonexigent entry of a private residence, for the purpose of effectuating a felony arrest, is unconstitutional. With the benefit of that ruling, we now reverse.
On February 20, 1977, a Normal police officer was dispatched to Brokaw Hospital in Normal to interview a beating victim, Willie Jones. Jones told the officer that he had been struck by the defendant, William Abney, with an iron bar and a .9-millimeter pistol near Abney's home. Jones' injuries were evident. He also gave the police the address of Abney and told the police that Abney had walked toward his home after the beating. Two officers proceeded to Abney's residence. It was almost 6:30 p.m., and approximately 1 1/2 hours had passed since the alleged beating. No warrant was obtained. The officers later testified that they knocked on the door of the defendant's residence with their weapons drawn, that they announced their identity, that the door swung open, that they entered the premises, and that a .9-millimeter bullet was seen in plain view on a couch. Later that evening, defendant walked into the Normal police station, was arrested, and related his version of the beating.
On February 22, 1977, defendant was charged with aggravated battery. On June 22, 1977, he filed a motion to suppress any testimony concerning the officers' viewing of the .9-millimeter bullet. The bullet is significant for two reasons. First, it matches the caliber of pistol allegedly used in the beating. Second, Jones later testified that Abney had threatened him shortly before the beating by saying that the bullet had Jones' name on it. This threat allegedly was made in Abney's home, and Jones testified that Abney threw the bullet on the couch after making the threat.
The State opposed Abney's motion to suppress on the ground that the officers' entry was reasonable and that the bullet was spotted in plain view. (See Coolidge v. New Hampshire (1971), 403 U.S. 443, 465, 29 L.Ed.2d 564, 582, 91 S.Ct. 2022, 2037.) The court specifically found that Abney's door was unlocked but ruled that the entry was unlawful and that the sighting of the bullet was therefore also improper. The court's determination that the entry was unauthorized was based on People v. Wolgemuth (1976), 43 Ill. App.3d 335, rev'd on other grounds (1977), 69 Ill.2d 154, which held that a warrantless entry is not justified in the absence of exigent circumstances. The court, in granting Abney's motion, found no such circumstances.
In the appeal, we are asked to determine the validity of the officers' entry and the resultant viewing of the .9-millimeter bullet. Because the validity of the viewing is dependent on the validity of the entry (Coolidge v. New Hampshire (1971), 403 U.S. 443, 466, 29 L.Ed.2d 564, 583, 91 S.Ct. 2022, 2038), we first address the issue of the officers' authorization to enter Abney's home.
The State has argued that the warrantless entry was justified because the officers had probable cause to believe that a crime had been committed and that Abney was home. This argument is foreclosed, however, by the Supreme Court's recent ruling in Payton v. New York (1980), 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371. Alternatively, the State argues that, if more than probable cause is required, exigent circumstances were present which justified the entry.
Prior to the United States Supreme Court's recent decision in Payton, it had not resolved the issue of "whether and under what circumstances an officer may enter a suspect's home to make a warrantless arrest" (United States v. Watson (1976), 423 U.S. 411, 418 n. 6, 46 L.Ed.2d 598, 605 n. 6, 96 S.Ct. 820, 825 n. 6; see People v. Wolgemuth (1977), 69 Ill.2d 154, 159-60, and cases cited therein). Federal courts> of appeal and various State courts> had reached different conclusions on the question. Some had required exigent circumstances. The leading case reaching this result was Dorman v. United States (D.C. Cir. 1970) (en banc), 435 F.2d 385, which was followed by our appellate court in People v. Wolgemuth (1976), 43 Ill. App.3d 335, rev'd on other grounds (1977), 69 Ill.2d 154. Other courts> had held that probable cause alone justified a warrantless entry into a suspect's home. The most recent case holding that probable cause was sufficient was People v. Payton (1978), 45 N.Y.2d 300, 380 N.E.2d 224, 408 N.Y.S.2d 395, rev'd (1980), 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371.
In reversing two judgments of the New York Court of Appeals, the United States Supreme Court in Payton declared unconstitutional a New York statute which authorized the warrantless entry of a private residence "to make a routine felony arrest." (Payton v. New York (1980), 445 U.S. 573, 574, 578-79 n. 9, 63 L.Ed.2d 639, 643, 646 n. 9, 100 S.Ct. 1371, 1374, 1376 n. 9.) Illinois, the court noted, has a similar law. 445 U.S. 573, 598-99 n. 46, 63 L.Ed.2d 639, 658 n. 46, 100 S.Ct. 1371, 1386 n. 46; see Ill. Rev. Stat. 1977, ch. 38, par. 107-5(d).
Under review in Payton were the felony murder conviction of Theodore Payton and the narcotics conviction of Obie Riddick. Payton's arrest on murder charges followed two days of intensive police work. The murder had occurred in the course of a service station robbery after which a man was seen fleeing with a rifle and wearing a ski mask. Payton's arrest was made possible when two eyewitnesses identified him as the killer, and one of them provided Payton's address. Although light and music emanated from within, the arresting officers were denied admittance when they proceeded to the address, without a warrant, and knocked on the metal door of the residence. The officers summoned assistance, and after 30 minutes the door was pried open with a crowbar. (Payton v. New York (1980), 445 U.S. 573, 576, 63 L.Ed.2d 639, 645, 100 S.Ct. 1371, 1375.) Upon entering, Payton was not to be found, but a shell casing was found in plain view on a stereo. Following an extensive search of closets, drawers, and other parts of the residence, the officers discovered a shotgun, ammunition, a sales receipt for a Winchester rifle, and photographs of Payton with a ski mask. Payton surrendered the next day. People v. Payton (1978), 45 N.Y.2d 300, 305, 380 N.E.2d 224, 225-26, 408 N.Y.S.2d 395, 396-97.
In the case of Riddick, by contrast, the defendant was arrested more than two years after he allegedly committed two armed robberies in 1971. In June of 1973, Riddick was identified by the victims, and his address was learned in January of 1974. Without obtaining a warrant, police officers went to Riddick's residence on March 14, 1974. Riddick's three-year-old son opened the door in response to their knock, and Riddick could be seen sitting on a bed. The police entered, arrested Riddick, and searched in a drawer two feet from the bed. Narcotics and a hypodermic syringe were found therein, and Riddick was charged with narcotics violations. Payton v. New York (1980), 445 U.S. 573, 578, 63 L.Ed.2d 639, 646, 100 S.Ct. 1371, 1376; People v. Payton (1978), 45 N.Y.2d 300, 307, 380 N.E.2d 224, 227, 408 N.Y.S.2d 395, 397-98.
In reversing the convictions of Payton and Riddick, the Supreme Court noted that the New York courts> had made no attempt to justify the entries as based upon exigent circumstances, and the court therefore did not offer a definition of such circumstances, although it stated that Payton's arrest could arguably be so justified. (Payton v. New York (1980), 445 U.S. 573, 582-83, 63 L.Ed.2d 639, 648, 100 S.Ct. 1371, 1378.) The court limited itself to the question of whether probable cause is sufficient to justify the entries, holding that it is not. Starting with the premise that the physical entry of the home is the chief evil against which the fourth amendment is directed (citing United States v. United States District Court (1972), 407 U.S. 297, 313, 32 L.Ed.2d 752, 764, 92 S.Ct. 2125, 2134), the court held that warrantless searches and seizures in the home are presumptively unreasonable (citing Coolidge v. New Hampshire (1971), 403 U.S. 443, 454-55, 29 L.Ed.2d 564, 576, 91 S.Ct. 2022, 2032), that the fourth amendment applies equally to searches and seizures of persons and property, and that no constitutional difference exists between the intrusiveness of entries to search and entries to arrest. (Payton v. New York (1980), 445 U.S. 573, 585, 63 L.Ed.2d 639, 650, 100 S.Ct. 1371, 1379-80.) In Coolidge, the court had ruled that warrantless searches are unconstitutional in the absence of exigent circumstances (Coolidge v. New Hampshire (1971), 403 U.S. 443, 454-55, 29 L.Ed.2d 564, 576, 91 S.Ct. 2022, 2032), and four members of the court, in dicta, expressed the opinion that the same exigency requirement is applicable to warrantless entries to arrest (403 U.S. 443, 477-78, 29 L.Ed.2d 564, 589-90, 91 S.Ct. 2022, 2044). In Payton, the court adopted the view of those four justices, holding that a warrant is required to support a nonexigent entry into a private residence for the purpose of effecting a felony arrest. Because no warrants supported the arrests of Payton and Riddick, the court reversed the judgments of the New York Court of Appeals and remanded to that court for further proceedings.
Upon first glance, the position adopted by the New York statute invalidated in Payton appears to be the position espoused by the applicable provisions of our arrest statute (Ill. Rev. Stat. 1977, ch. 38, pars. 107-1 through 107-14). Section 107-2(c) of the statute provides: "A peace officer may arrest a person when * * * [h]e has reasonable grounds to believe that the person is committing or has committed an offense." (Ill. Rev. Stat. 1977, ch. 38, par. 107-2(c).) Section 107-5(d) provides: "All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to make an authorized arrest." (Ill. Rev. Stat. 1977, ch. 38, par. ...