APPEAL from the Circuit Court of Cook County; the Hon. GERALD
L. SBARBORO, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
James W. Johnson (defendant) was charged with attempt armed robbery. The defendant filed a motion to quash the arrest and to suppress evidence. The trial court granted the motion. The People appeal.
The issues were decided on a stipulation, without hearing testimony. The stipulation establishes that on August 10, 1979, Chicago police officers Reagan and Glen interviewed Phyllis McGee, a victim of an attempt armed robbery on the previous day. McGee informed them her assailant was known to her for some 10 years by the name "Syrup." Thereafter, in conversation with another person, the officers learned the suspect lived at 4112 South Ellis Avenue in Chicago. They proceeded immediately to that address.
When the police knocked at the door, an elderly woman, Georgia Jordan, opened the front door. The screen door remained closed. The officers properly identified themselves. Mrs. Jordan is the grandmother of the defendant. She and defendant are domiciled at that address. The police officers then noticed defendant on a stairway inside the house. They asked him if he was "Syrup." He answered that he was.
Officer Reagan then told Mrs. Jordan "he wish[ed] to make an arrest upon the person that they saw on the premises." She opened the screen door, which had remained closed throughout the conversation. The policemen entered the house and placed defendant under arrest. Defendant and Mrs. Jordan neither invited the officers to enter nor objected to their entry. The police officers had probable cause to arrest defendant but they did not have a search warrant or an arrest warrant.
At the hearing, the defendant conceded the police had probable cause for the arrest. The State's Attorney conceded there were no exigent circumstances which would eliminate the need for a warrant. It is agreed defendant seeks to suppress statements made by defendant at his home and subsequently at the police station and also physical evidence.
The People contend consent to enter the premises was given to the police by an authorized person; absent such consent exigent circumstances made entry into the home reasonable; the law forbidding entry of a home without a warrant should not be given retroactive effect; and, even assuming the arrest illegal, statements made by defendant at the police station were competent evidence.
The People are correct that Mrs. Jordan, as cotenant of the premises, had the right to consent to the entry of the police, and if she manifested a valid, voluntary consent, the arrest of defendant was legal. (See United States v. Matlock (1974), 415 U.S. 164, 169-72, 39 L.Ed.2d 242, 248-50, 94 S.Ct. 988, 991-93.) Generally, the issue of consent is one of fact to be determined by the totality of circumstances, and we will not disturb such a finding unless it is clearly unreasonable. (People v. DeMorrow (1974), 59 Ill.2d 352, 358, 320 N.E.2d 1.) However, in the case at bar, the determination of consent was based on a stipulation; therefore, there are no judicial findings of fact upon which this court can rely.
The United States Supreme Court in Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248, 36 L.Ed.2d 854, 875, 93 S.Ct. 2041, 2059, held:
"[W]hen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied."
Furthermore, for the State to establish voluntary consent, it must show more than mere "acquiescence to a claim of lawful authority." Bumper v. North Carolina (1968), 391 U.S. 543, 548-49, 20 L.Ed.2d 797, 802, 88 S.Ct. 1788, 1792.
In the case at bar, the stipulation shows only that Mrs. Jordan opened the door when told the police "were there to arrest that man." The police apparently never even asked permission to enter. Furthermore, the stipulation is silent as to the subjective state of mind of Mrs. Jordan, upon which the matter of voluntariness is necessarily based. See Schneckloth, 412 U.S. 218, 247-48, 36 L.Ed.2d 854, 874-75, 93 S.Ct. 2041, 2058, and cases there cited.
• 1 A finding by this court of valid consent based on the stipulation of facts before us would imply that merely opening a door without comment in response to a police officer's statement that he wished to enter would constitute consent as a matter of law. In the case before us the People have shown at most only an acquiescence to authority. We agree with ...