Appeal from the Circuit Court of Macon County; the Hon. Rodney
A. Scott, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant was originally charged by information filed in the circuit court of Macon County with the offenses of theft by deception of property having a value in excess of $150 and attempt (theft by deception of property having a value in excess of $150). These offenses are not involved in this appeal. Two days after the filing of the original informations, the State sought, and was granted, leave to file an additional information charging the offense of arson (intent to defraud an insurer) in violation of section 20-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 20-1(b)). This was designated as count III. Still later, approximately six days before trial, the State again sought, and was granted, leave to file an additional information charging the offense of arson (damaging the property of another) in violation of section 20-1(a) of the Code. (Ill. Rev. Stat. 1979, ch. 38, par. 20-1(a).) This was designated as count IV. A jury trial was held on counts III and IV. The count alleging attempt was dismissed and the record does not disclose any disposition as to the count alleging theft. The jury found defendant guilty on both counts and the trial court sentenced him to three years' imprisonment on count IV only, since both counts of arson arose out of the same set of circumstances.
No question of reasonable doubt has been raised on appeal. Therefore only such factual matters as are necessary to understand the issues which have been raised will be examined.
The principal issue, in our opinion, is the contention by the defendant that the trial court erred in denying his motion to suppress evidence. This, in turn, depends upon the validity of a consent to search executed by James Shelton, defendant's father.
It appeared that defendant resided with his parents in Decatur; he was the possessor of a 1975 Chevrolet automobile, although title to the vehicle was in the name of his father, James. Evidence was received that the defendant had stated to a friend, Todd Gober, that he had in mind to burn the car and collect the insurance proceeds. This conversation took place on October 17, 1981, in the garage at the parents' home where the car was located. At that time and place defendant removed certain personal property from the car, stuffed some paper into the dashboard ash receiver, and then placed a lighted cigarette in the ash receiver. This occurred about 6 p.m. Defendant was then called into the house for supper. The Decatur fire department responded to an alarm at about 7 p.m. The automobile was destroyed in the blaze.
A fire inspector examined the car on the evening of the fire, October 17, and again the next day, October 18, but was unable to determine with certainty the cause of the fire. On October 17, at the time of the fire, a consent to search was obtained from James Shelton. This was on a form apparently in common use by the fire department. There are three pertinent provisions for the purposes of this opinion: (1) the consent is to search "premises commonly known as 3544 E. Orchard St."; (2) the consent allows the members of the fire department to enter the premises "at such times as they deem appropriate"; and (3) the consent provides "that this consent may be revoked by me at any time."
The fire inspector testified that he became convinced that the fire was of criminal origin on account of two factors: first, that it appeared to have originated in the ash receiver, and second, an interview which he had with Todd Gober. He then returned to the Orchard Street address on October 30, 1981. He attempted to find someone to consent to a search but no one was at home so he proceeded under the consent given on October 17 and removed the ash receiver and its contents from the car which was still sitting where it had been left on the night of the fire, just off the driveway outside the house.
Defendant filed a motion to suppress the items seized. At the hearing on that motion, James Shelton testified that he had executed the consent; that he understood that the fire department wanted to return the next day during the daylight hours to search; that all the conversation about the consent concerned the automobile, not the house; that both the police and fire departments asked for his consent on October 30 but he refused; that between October 17 and October 30 he never contacted the fire department to revoke the consent; and that he did not consider that the consent extended to October 30.
At the same hearing, the fire inspector testified that on October 17 he explained to James Shelton that the consent could be revoked at any time; that Shelton asked how this could be done and that he told him to contact himself, the inspector; that he told Shelton that he was certain they would be back the next day to examine the car; that he did return on October 30 and searched as above described; that the ash receiver contained burnt bits of paper and a cigarette butt; that later on the same day he asked Shelton for permission to search and was refused; that defendant was then placed under arrest; and that he received no notification of revocation of the consent between October 17 and October 30.
Defendant makes two arguments in support of his contention that the consent to search was invalid and hence that the trial court should have allowed the motion to suppress. First, he claims that a consent to search "premises" does not include an automobile; and second, that neither Shelton nor the fire inspector understood the consent as a continuing one, but rather it was limited to a search on October 18.
The first argument is without merit. Both Shelton and the fire inspector understood that it was the car which was to be searched; there is no indication that the house was in any wise damaged and no reason therefore existed either to obtain a consent or to give it for a search of the house. The question of the subject matter of the consent itself is a factual one (People v. Cole (1977), 53 Ill. App.3d 711, 368 N.E.2d 1308) and will not be disturbed unless the conclusion below is against the manifest weight of the evidence. It is not.
The second contention is much more troublesome. The supreme court has stated: "An arresting officer has no more right to make a search beyond the limit prescribed in a consent to search than he has to exceed the limit prescribed in a search warrant." (People v. Schmoll (1943), 383 Ill. 280, 283, 48 N.E.2d 933, 934.) While no question of police arrest is involved here, the same principle applies to a search pursuant to a consent given to a fire inspector. (See People v. Holloway (1981), 86 Ill.2d 78, 426 N.E.2d 871.) The fact that the consent in Schmoll was oral, while in the instant case it was written, does not distinguish the cases.
The question may then be posed thus: Is there a limit on a "blanket" consent such as was given in the case at bar, and if so, what is it? Corollary questions are: assuming the existence of some limit, how does it apply in the number of searches and in time constraints?
We know of no authority which condemns such a consent as being per se illegal or unconstitutional. Two prior cases have dealt with the question, although not in the precise posture of the instant case. In People v. Jackson (1978), 57 Ill. App.3d 720, 373 N.E.2d 729, the police obtained the consent of a counselor in charge of parolees at a YMCA, of whom defendant was one, to search defendant's room. This was done in defendant's absence. Later the officers returned and arrested defendant, who was then in his room, and at that time seized certain evidence not related to the offense for which defendant was arrested. The appellate court affirmed a suppression order, but on the basis that no consent had been obtained from the counselor for the second search and that the original consent did not ...