APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
A jury found the defendant, Duane Meddows, guilty of the murder of his father, Cletus Meddows, who died as a result of serious injuries sustained when dynamite exploded beneath him. The victim died on August 27, 1975. After having been found, first, fit and, later, unfit to stand trial, defendant was on February 1, 1977, once again found fit to stand trial. Thereafter the State brought an interlocutory appeal (People v. Meddows (1978), 67 Ill. App.3d 995, 385 N.E.2d 765, cert. denied (1979), 444 U.S. 950, 62 L.Ed.2d 320, 100 S.Ct. 422), from an order of the trial court suppressing certain statements of the defendant and physical evidence seized from the trunk of his car. In that appeal we found that the suppressed evidence had not been "come at by exploitation" of an interrogation that occurred without benefit of Miranda warnings, and we reversed the suppression order of the trial court accordingly. In this appeal defendant raises two issues: (1) whether his consent for the search of his automobile and bedroom was voluntary, and (2) whether comments of the State's Attorney during closing argument, in which he referred, according to defendant, to the accused's failure to take the witness stand, served to deny defendant the opportunity for a fair trial.
We consider first the search of defendant's bedroom. At the time of the explosion the victim and defendant were hunting along a dry creek bed. Investigating the incident, police found at the site evidence of a booby trap, including a 40-foot length of wire, a battery and 14 sticks of undetonated dynamite. As a deputy sheriff and a Federal agent were questioning defendant at the sheriff's department two days after the incident occurred, they received a telephone call from another officer saying that one of defendant's relatives, Clarence Buddy, had reported the presence of dynamite in the house trailer where the victim had lived with his wife, Carolyn Meddows, and defendant, her stepson. Also reported to be in the trailer were small children who had come with their family to attend the victim's funeral. The officer calling with this information believed that the "Mr. Meddows" to whom Clarence Buddy referred as having dynamite in the trailer was the victim rather than his son. By the time this officer called the ones who were questioning defendant at the sheriff's department, he had gone to the funeral home where Carolyn Meddows was and had obtained from her, after "a bit of a fainting spell," oral consent to search the trailer. At the time she told the officer that she had seen dynamite in the defendant's room, to which she had access.
At the hearing to suppress illegally seized evidence defendant did not testify, but one of the two officers who had been questioning him testified that upon receiving this information they believed they needed defendant's consent to search his bedroom in the trailer. This officer said that prior to receiving defendant's consent the two officers informed him that they had obtained Carolyn Meddows' consent to search the trailer and that officers were on their way to the trailer but that they could not search defendant's room without his consent. The officer testified that defendant, asked by the two officers what they would find at the trailer, responded that they would find dynamite, which defendant thereupon admitted having stolen from the coal mine where he worked as a "dynamite shooter." Arrested for theft of the dynamite and advised of his rights, defendant then gave his written consent to search both his bedroom and his automobile. Thereafter, he indicated that at the trailer were relatives from out of town, including children, one of whom — four or five years of age — had, he said, helped clean defendant's room from time to time. In response to questioning, defendant said that in the room, in addition to the dynamite, were blasting caps. At that juncture one of the two officers questioning him got on the dispatcher's radio to advise those officers on their way to conduct the search of the trailer "to be careful, that there was definitely dynamite in his room and we asked them to wait until we got there." According to the officer, when they arrived at the trailer they found "four or five" people in it, "a husband and wife and three children or two children, I'm not sure how many."
At the suppression hearing the officer who had learned from Clarence Buddy of the presence of the dynamite in the trailer testified, "After he [Buddy] had given us this information, our main concern was an emergency type situation, if there was dynamite in that trailer." The officer later reiterated this concern, at one time stating, "I know our main concern was to get to that trailer because of these children," and at another testifying as follows:
"Q [State's Attorney]: * * * [W]hen you went to the funeral home to get consent, you wanted to get into the trailer for the prime motive of the safety of the people there, is that correct?
A: To get * * * the dynamite out of that trailer with these kids being in the trailer, that was our number one concern.
Q: And in that regard, when you went there, you were going there assuming that that was Cletus Meddows', the victim's, dynamite and had no relationship to the defendant.
Q: So you weren't motivated by gathering evidence as much as the safety of the people inside?
A: That was the main thing at the time was the safety of anybody around that trailer."
The search of defendant's room revealed 90 blasting caps, a roll of detonating cord and 96 sticks of dynamite. In the hallway of the trailer police found shot firing wire, numerous rolls of tape, including electrical and friction tape, and several batteries.
Although defendant contends that the search of his bedroom was illegal because not obtained as a consequence of his voluntary consent, the State maintains that the warrantless search was legal for several reasons, including the existence of exigent circumstances, namely, the presence of dynamite in a residence where young children were visiting.
• 1 In Illinois the emergency exception to the warrant requirement is recognized. (People v. Lewis (1979), 75 Ill. App.3d 259, 393 N.E.2d 1098. See also Bacigal, The Emergency Exception to the Fourth Amendment, 9 U. Rich. L. Rev. 249 (1975); Mascolo, The Emergency Doctrine Exception to the Warrant Requirement under the Fourth Amendment, 22 Buff. L. Rev. 419 (1973); Note, The Emergency Doctrine, Civil Search and Seizure, and the Fourth Amendment, 43 Fordham L. Rev. 571 (1975); ALI Model Code of Pre-Arraignment Procedure §§ 260.5 (1975).) It is well established that, under this exception, police may make a warrantless entry into private premises if they reasonably believe an emergency exists. (People v. Householder (1980), 81 Ill. App.3d 31, 400 N.E.2d 988; Lewis; People v. Kepi (1978), 65 Ill. App.3d 327, 382 N.E.2d 642.) The purpose — to offer assistance to a citizen possibly imperiled, not to obtain evidence of a crime — justifies such a search. (People v. Elders (1978), 63 Ill. App.3d 554, 380 N.E.2d 10; People v. Swansey (1978), 62 Ill. App.3d 1015, 379 N.E.2d 1279; People v. Lovitz (1976), 39 Ill. App.3d 624, 350 N.E.2d 276, cert. denied (1977), 434 U.S. 842, 54 L.Ed.2d 107, 98 S.Ct. 141.) As was pointed out in Lovitz, "Generally speaking, the entry and search of a private dwelling without a warrant is constitutionally prohibited except under circumstances where the police are confronted with an emergency which dictates the need for immediate action" (39 Ill. App.3d 624, 629, 350 N.E.2d 276, 279), the need for immediate action precluding an opportunity to obtain a search warrant. The ...