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People v. Posey





APPEAL from the Circuit Court of Marion County; the Hon. W.R. TODD, Judge, presiding.


Mr. JUSTICE WELCH delivered the opinion of the court:

The State appeals from an order of the Circuit Court of Marion County suppressing the use at trial of certain evidence seized from a Texas motel room occupied by the defendant. At issue are the scope and voluntary character of the consent to search given to F.B.I. agents by defendant's girl friend and co-occupant of the motel room.

In the evening of February 11, 1980, William John Posey was arrested in Mesquite, Texas, by Federal authorities for the murder of two women, one in Illinois and one in Vermont. On his person was discovered a key to Room 97 at the Motel Six in Mesquite. Posey was taken into custody and the manager of the Motel Six was instructed to "secure" Room 97. No law enforcement personnel were placed near the room to keep watch over it.

The following morning, at 9 a.m., F.B.I. Agents Clow and Llewellyn arrived at the motel. Both Clow and Llewellyn testified that their primary purpose was to see if the room was secure, but Llewellyn admitted that they also wanted to determine if any evidence was present in the room. Upon their arrival, the agents noticed that the curtains to Room 97 were open and two women were inside.

Clow and Llewellyn knocked on the door, introduced themselves as F.B.I. agents and stated that they believed that the room had been occupied by an individual who was arrested the night before. The women invited them into the room, which, according to Clow and Llewellyn, was in a state of disarray, indicating to them that the women had not recently arrived. The room may be described as a typical budget motel room, with two double beds, a television set on a stand, several dressers and an open clothes rack, rather than a closet. A bathroom adjoined the sleeping quarters.

Near the television, the agents saw a pile of clothing and two open suitcases on the floor. The larger of the two was black and contained more clothing, while the other case was blue and held toiletries, though it may also have contained clothing. The small case will be referred to as a shaving kit. A woman's nightgown and a western-style shirt were on hangers on the clothes rack, while several cooking utensils had been placed atop the rack. Other unspecified items rested on at least one of the beds.

One of the women stated that her name was Diane Parlette and that she and her husband, Mike, lived in an adjacent room. The other woman identified herself as Carol Hepler and told the agents that she had been living in Room 97 with Posey, who she knew as Jim Santini, for slightly more than a week. Ms. Hepler met Posey at the end of December 1979, presumably in Ohio, where she resided. In January 1980, Ms. Hepler heard that Posey would be in Dallas, although she did not know where he would be staying. She left Ohio, without a jacket, without a suitcase or change of clothes, without money and without toiletry items, and travelled by truck to Texas, where she happened to meet Posey at a truck stop in Mesquite. Posey invited her to share a motel room with him, and so she did.

Ms. Hepler did not contribute to the cost of the room, which was registered under the name of Jim Scorpione, another alias of Posey's. She did not have a key to Room 97, and if she wanted to leave the room, she would ask Mrs. Parlette to wait for her return. Ms. Hepler borrowed the nightgown on the clothes rack from Mrs. Parlette, and she borrowed a shirt from Posey.

Agents Clow and Llewellyn told Ms. Hepler of the reasons for Posey's arrest. Agent Clow remarked that Ms. Hepler was lucky to be alive, though it is not certain whether this comment was made spontaneously or in response to an observation by Ms. Hepler. This information upset her, and she began to whimper, and, at one point, lay down on a bed. Ms. Hepler had discussed marriage with Posey, but they were not engaged. She informed the agents that she had miscarried Posey's child four days before their arrival.

The agents assured Ms. Hepler and Mrs. Parlette, who remained in and around the room during these proceedings, that they were not suspects in any of the crimes for which Posey was arrested, nor were they under arrest. Clow and Llewellyn spent from 15 to 45 minutes attempting to calm Ms. Hepler. She asked them several questions about the investigation and arrest of Posey. During this conversation, Mr. Parlette entered the room and stated that Posey, using the name "Scorpione," had just called him and requested him to remove the contents from Room 97. Mr. Parlette left Room 97 without taking anything with him.

After they had calmed Ms. Hepler, Agents Clow and Llewellyn presented her with a form to indicate her consent to search the room. They asked if she had been restricted by Posey from entering the suitcases, and she replied in the negative. They told her that she did not have to consent to the search, and requested her to read the form. Ms. Hepler said that she understood the form, and signed it in the presence of the agents, who witnessed it, and Mrs. Parlette. The agents then took account of the items in the room and looked in all drawers, which were empty. Ms. Hepler assisted in this process, and identified the owner of the various goods. Virtually everything in the room belonged to Posey.

At the hearing on the motion to suppress this evidence, Posey testified that although Ms. Hepler had access to the entire motel room, he had forbidden her from entering the suitcases or "any of his things." Ms. Hepler testified that she could enter or use anything in the room except for the shaving kit. However, she admitted that she first saw the contents of the shaving kit on the morning of February 12, before the F.B.I. agents arrived.

No witness at the hearing suggested that the agents made any promises or threats to coerce Ms. Hepler to sign the form. She concluded that her consent was not voluntarily given, because she felt that if she did not cooperate with the ...

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