Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court
CHIEF JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Defendant, James Eichelberger, was charged by information in the circuit court of Ford County with possession of less than 30 grams of a substance containing lysergic acid diethylamide (LSD). (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1402(b).) Defendant filed a motion to suppress evidence which had been taken from him following his warrantless arrest by Paxton police officers. Hearing was had on the motion immediately prior to trial. The motion was denied, and after a bench trial, defendant was found guilty and sentenced to a term of 18 months' imprisonment. The appellate court reversed and remanded. (92 Ill. App.3d 1199.) In a Rule 23 order (73 Ill.2d R. 23), the court ruled that the warrantless arrest and the subsequent search were unlawful. The court concluded that there were no exigent circumstances present to justify the warrantless arrest. We granted the State's petition for leave to appeal pursuant to Supreme Court Rule 315 (73 Ill.2d R. 315). We now reverse.
At the suppression hearing defendant testified that on February 10, 1980, he was in his room at the Paxton Hotel in Paxton, talking with Michael Flavin. Flavin was asking questions about drugs, and defendant was attempting to answer them. Defendant testified that the door to his hotel room was closed but "cracked open." Defendant was sitting on his bed when two officers entered his room with their guns drawn, arrested him and searched him.
Paxton police officer Walter Whitehill was also called to testify for the defense at the suppression hearing. He testified that on February 9, 1980, the day before the arrest of defendant, he was advised by another Paxton police officer, Officer Brown, that defendant was suspected of selling contraband at the Paxton Hotel. The following day, at about 8 a.m., both officers went to the Paxton Hotel. Officer Whitehill was in a room next door to that of defendant. After about an hour, defendant was observed entering his room with Michael Flavin. It was revealed during the trial that Flavin was a police informant and that he was attempting to set up a "controlled buy" from the defendant. It was also revealed that, following the arrest of defendant, some substance was also seized from Flavin and from the bed by Officer Brown, who was not available to testify. These items are not involved in this case.
Whitehill testified that he could see a patch of sunlight on the hallway floor, indicating that defendant's door was not closed. Neither the evidence at the suppression hearing nor that at the trial establishes clearly to what degree the door to defendant's room was open. Some testimony of the officer indicates it was open wide enough for him to see into the room when he stepped around the corner. The testimony of the defendant indicates it was only "cracked open." Whitehill then fully opened the door to his own room and stepped to the corner near the dividing wall between the two rooms in order to overhear defendant and Flavin. Whitehill testified that he heard Flavin ask defendant whether he had any "grams" and defendant answer in the affirmative. Whitehill then heard Flavin say he wanted a "gram" and defendant reply: "You got it." Defendant also stated he expected to get some "coke" within the next few days. Whitehill testified that he knew that to people who use drugs the word "gram" refers to opium and the word "coke" refers to cocaine.
Whitehill gave a prearranged signal to Officer Brown indicating that he believed that a sale was occurring. Whitehill said that he then "stepped around the corner of the room" and arrested and searched the defendant.
Whitehill's search did not uncover any opium ("gram") or cocaine ("coke") on the defendant's person, but it did turn up several small squares of blotter paper in defendant's jacket pocket. Later at trial, the State introduced evidence that the small squares of blotter paper, on analysis by a State forensic scientist, contained less than one-tenth of a gram of a substance containing LSD.
The defendant argued to the trial court that the officers had information concerning the defendant's suspected illegal activities for more than 24 hours and, therefore, a search warrant should have been obtained. However, at the conclusion of the suppression hearing, the trial court stated:
"It's obvious * * * there [were] no grounds to get a search warrant before the officers believed an offense was taking place and once they believed that an offense was taking place they had a right to make an arrest."
The first issue to be considered is whether defendant retained a reasonable expectation of privacy in his hotel room when the door was "cracked open." Although the recent United States Supreme Court decision in Payton v. New York (1980), 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371, concerned preserving the sanctity of the home and preventing intrusions which breach the entrance to the home, we note that this State has previously accorded the residents of a hotel the same constitutional protections against unreasonable searches as are enjoyed by residents of private homes. (People v. Bankhead (1963), 27 Ill.2d 18, 23; People v. Wilson (1980), 86 Ill. App.3d 637, 640; see also 1 LaFave, Search and Seizure sec. 2.3(b) (1978); Annot., 86 A.L.R.2d 984 (1962), 68 Am.Jur.2d Searches and Seizures sec. 18 (1973).) It follows, then, that the holding of Payton, that a warrantless, nonconsensual entry into a suspect's home to make a routine felony arrest is violative of the fourth amendment absent exigent circumstances, in this State applies to an occupant of a hotel room as well.
We must determine what effect should be accorded the "cracked open" door. At the suppression hearing, defendant testified that the door "was closed, but it was cracked open." Officer Whitehill testified that "you could tell by the sunlight on the floor [which he could see from his door] that the door of the room had been left open." The State urges that "[d]efendant did not seek to exclude the intruding eye or uninvited ear and shed his right to privacy by leaving his door open."
Although the State cites numerous cases in support of its argument that defendant has "waived" his fourth amendment rights by allowing his door to be "cracked open," defendant correctly points out that those cases deal with the propriety of observation, and not entry, into a hotel room. These are lesser intrusions into privacy than a physical entry into the home. (See People v. Wright (1968), 41 Ill.2d 170, 174, cert. denied (1969), 395 U.S. 933, 23 L.Ed.2d 448, 89 S.Ct. 1993; Moody v. State (1974), 52 Ala. App. 552, 295 So.2d 272; State v. Brown (1973), 9 Wn. App. 937, 515 P.2d 1008; Borum v. United States (D.C. App. 1974), 318 A.2d 590; State v. Clarke (Fla. App. 1970), 242 So.2d 791; 1 LaFave, Search and Seizure sec. 2.3(c) (1978).) In contrast, in the instant case, defendant argues that his fourth amendment rights were violated by the warrantless entry of police officers into his hotel room and the subsequent arrest and search.
Other courts> have recently considered what effect similar circumstances have on a defendant's expectation of privacy. (United States v. Burns (10th Cir. 1980), 624 F.2d 95, cert. denied (1980), 449 U.S. 954, 66 L.Ed.2d 219, 101 S.Ct. 361; United States v. Agapito (2d Cir. 1980), 620 F.2d 324, cert. denied (1980), 449 U.S. 834, 66 L.Ed.2d 40, 101 S.Ct. 107.) According to those courts>, a defendant does have a legitimate expectation of privacy within his hotel room. However, in contrast to the occupant of a private dwelling who has the exclusive enjoyment of the land he possesses immediately surrounding his home, the hotel occupant's reasonable expectations of privacy are reduced with regard to the area immediately adjoining his room. (United States v. Burns (10th Cir. 1980), 624 F.2d 95, 100; cert. denied (1980), 449 U.S. 954, 66 L.Ed.2d 219, 101 S.Ct. 361; United States v. Agapito (2d Cir. 1980), 620 F.2d 324, 328-32, cert. denied (1980), 449 U.S. 834, 66 L.Ed.2d 40, 101 S.Ct. 107.) While defendant's "cracked open" hotel room door may have facilitated the overhearing of activities carried on within the room by those outside, that fact by itself was in no way an invitation to or a justification for a warrantless entry. This fact may, however, be relevant in considering whether the entry was forcible or peaceful.
If the warrantless entry is to be justified, then, it must be justified on the basis of exigent circumstances. (Payton v. New York (1980), 445 U.S. 573, 583, 63 L.Ed.2d 639, 648, 100 S.Ct. 1371, 1378; People v. Abney (1980), 81 Ill.2d 159, 168.) This court recently addressed the question of exigent circumstances at length in Abney. In that case the court considered the constitutionality of the Illinois arrest statute (Ill. Rev. Stat. 1977, ch. 38, par. 107-2(c)) in light of the recent United States Supreme Court decision in Payton which declared a similar New York statute to be unconstitutional. The court concluded that our statute was "in compliance with the constitutional guidelines enunciated in Payton" because "the principles of the exigent circumstances ...