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People v. Petersen

OPINION FILED NOVEMBER 30, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

KENNETH L. PETERSEN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Logan County; the Hon. John T. McCullough, Judge, presiding.

JUSTICE LEWIS DELIVERED THE OPINION OF THE COURT:

Following a jury trial, the defendant was found guilty of the offenses of reckless homicide and leaving the scene of an accident involving death. Judgment was entered only on the reckless homicide count, and defendant was sentenced to six months' imprisonment in the Logan County jail, placed on 30 months' probation, and ordered to pay court costs in the amount of $445.60.

On appeal, the defendant contends that the police illegally entered a portion of the premises where he resided in search of a hit-and-run vehicle, that his warrantless arrest in his home was unconstitutional and that his automobile was illegally seized by police. Therefore, defendant argues that statements which he made while in custody and the results of an intoxilyzer test administered after his arrest, as well as evidence removed from his automobile, should have been suppressed. Defendant further asserts that since the evidence which led police to believe that his automobile was the car involved in a hit-and-run accident was obtained as a result of a violation of his fourth amendment rights, there was insufficient probable cause for the issuance of a warrant for the performance of skid tests with his automobile, and that, therefore, the results of such tests should also have been suppressed. Defendant finally contends that a gruesome color slide of the victim's body as found at the accident scene should not have been admitted into evidence, and that he was not proved guilty of reckless homicide beyond a reasonable doubt.

At approximately 10:45 p.m. on the evening of August 10, 1981, Trooper Daniel Fruge of the Illinois State Police observed a male body lying on the left side of Ottawa Street in Lincoln. Fruge stopped his vehicle and checked the man's neck and wrists for a pulse, but could not find one. The man was subsequently pronounced dead at the scene and was identified as Ralph E. Lawrence. He had apparently been struck with great force by a motor vehicle, for his body was badly mangled. Fruge immediately notified the Lincoln Police Department, as well as Illinois State Police headquarters, of his discovery. Sergeant William Ritter, Fruge's shift supervisor, was the first to respond to Fruge's call for assistance. He conducted an on-the-scene interview with three witnesses who had seen a gold Monte Carlo with a shattered windshield and heavy front-end damage driving away from the scene of Lawrence's death. In the meantime, the Lincoln police department dispatcher received an anonymous telephone tip that the suspected hit-and-run vehicle was at defendant's residence. This information, along with that obtained during Ritter's interview with the three witnesses at the scene, was then broadcast to police cars which were patrolling the city.

Officer Duff Starr and Sergeant Larry Hill, both of the Lincoln police department, heard the dispatch relating to the suspected hit-and-run vehicle and arranged to meet each other at defendant's residence, which was a duplex. Sergeant Hill was the first to arrive at defendant's home. He drove his squad car to the back of the duplex and positioned it so that he could see the front end of a heavily damaged automobile parked parallel to a set of railroad tracks which ran alongside the duplex. The car's windshield was partially shattered, the right front grill area was badly smashed, and what appeared to be blood was splattered over the rear of the car. The area surrounding the car was fairly well lit, but Hill nevertheless shined his flashlight on the car in order to view it. Although the suspect vehicle was registered in the name of Lester K. Petersen (defendant's father), Hill was able to associate the car with defendant, whom he had previously seen driving it. Officer Starr stated that when he arrived at defendant's home, he had to walk to the back of the duplex in order to fully observe the damage to the Monte Carlo, although the rear three quarters of the car was visible from the street.

After viewing the damaged vehicle, Starr and Hill went to the rear door of defendant's residence. The door apparently consisted of clear glass, and they could see defendant inside. Sergeant Hill knocked on the door and defendant opened it, stepped back, and allowed Hill to enter. Hill asked the defendant if he had had an accident, to which defendant responded in the affirmative. Hill then took two or three steps into the residence, and advised defendant that he would have to go the Logan County Public Safety Complex for further investigation. Officer Starr then transported defendant to the complex and Hill remained at the defendant's residence.

Sergeant William Ritter of the Illinois State Police subsequently arrived at defendant's residence and stayed with the vehicle until Corporal Brown from the Vehicle Identification Bureau arrived. Detective Vonderahe of the Lincoln police department was also present during this time period and took some photographs of the Monte Carlo. At approximately 1 a.m. on the morning of August 11, 1981, Corporal Wellenkamp, a crime scene technician, arrived. He collected three additional pieces of evidence from the vehicle and took some additional photographs of it. He and Corporal Brown then supervised the towing of the car to an enclosed commercial garage.

• 1 We first consider defendant's contention that the warrantless entry of police on the premises where he resided, for the purpose of viewing the suspect vehicle, was illegal. The threshold question which must be answered is, of course, whether the defendant had a legitimate expectation of privacy in the area where the police viewed the Monte Carlo. (See Rakas v. Illinois (1978), 439 U.S. 128, 58 L.Ed.2d 387, 99 S.Ct. 421.) The constitutionally guaranteed right to be free from warrantless searches extends to the areas of a yard surrounding a dwelling in which the residents have a reasonable expectation that they will be free from unannounced intrusions. (See, e.g., Wattenburg v. United States (9th Cir. 1968), 388 F.2d 853.) One does not, however, have a legitimate expectation of privacy in areas surrounding a residence which are visible from neighboring lands (see State v. Pontier (1974), 95 Idaho 707, 518 P.2d 969), even if it necessary to stand on one's toes or lean around the side of a partition in order to view the area in question. (United States v. McMillon (D.D.C. 1972), 350 F. Supp. 593.) For this reason, a police officer may enter an unenclosed driveway to obtain a closer look at an automobile which is partially visible from the street without violating any reasonable expectation of privacy. See United States v. Humphries (9th Cir. 1980), 636 F.2d 1172.

• 2 At times, even one's privacy interest in a portion of a premises which is normally subject to fourth amendment protections must yield to compelling public necessity. For instance, police may make a warrantless entry of a house while in hot pursuit of an armed robber (Warden v. Hayden (1967), 387 U.S. 294, 18 L.Ed.2d 782, 87 S.Ct. 1642), and may enter a dwelling without a warrant to prevent the imminent destruction of evidence (Ker v. California (1963), 374 U.S. 23, 10 L.Ed.2d 726, 83 S.Ct. 1623). In this respect, a case strikingly similar to the case at bar is People v. Morrow (1982), 104 Ill. App.3d 995, 433 N.E.2d 985. There, two rape victims provided police with a description of the car in which they had been abducted and identified the garage where some of the rapes took place. The rapes occurred between the hours of 3 and 7 a.m., and police, accompanied by the victims, arrived at the garage at about 11 a.m. the same morning. The yard in which the garage was located was enclosed by a fence which ran along the rear lot line. A detective entered the yard through a gate in the fence. The record did not disclose whether the gate was closed or open at the time of the detective's entry. The detective looked into the garage through an open service door which was on the side of the garage, facing a sidewalk that led from the rear gate to a house near the front of the lot, and saw an automobile which matched the description given by the victims. The detective then called to another officer and they entered the garage, opened the car door and discovered various items of evidence. The court, in rejecting the contention of one of the defendants that the detective's entering the yard and looking through the garage door constituted an illegal search, stated that although entry upon the premises was not made in a "hot pursuit" situation, the officers were certainly engaged in "warm" pursuit. The victims had been released by their abductors only a few hours earlier, and if the garage in question was not the location where some of the rapes occurred, the police needed to know this as soon as possible in order that they could continue their investigation without unnecessary delay. Relying on the principle that a moderate exigency justifies only a petty peaceful intrusion, the court held that the detective's looking into the garage through the open door was justified under the circumstances of the case.

In the present case, as in Morrow, the officers' initial entry on the premises occupied by defendant was of a trivial character. The record contains no indication that the yard surrounding the duplex was fenced, the hit-and-run vehicle was not in a garage or otherwise enclosed, the police did not touch the car and there was no intrusion on a dwelling during the search. The police arrived at the premises within an hour of the victim's death and thus were certainly in "warm" pursuit of the perpetrator of the crime if not in hot pursuit. (Cf. People v. Abney (1980), 81 Ill.2d 159, 407 N.E.2d 543 (commission of offense within past 90 minutes supported warrantless arrest of suspect in his home).) The need for the police to promptly determine whether the vehicle in question had been involved in the accident so that they would know whether to continue their search for the hit-and-run vehicle was quite compelling under these circumstances. Because of the visibility of a portion of defendant's vehicle from the street and the proximity of the officers' entry on the premises to the time of the victim's death, there was even greater justification for the warrantless search which led to the discovery of the suspect vehicle in the present case than in Morrow.

Furthermore, the evidence indicates that the Monte Carlo was parked parallel to a railroad track. There is no indication that any type of barrier separated the area where the car was parked from the track. The fact that the entire vehicle, including the damaged portion thereof, was probably visible from neighboring lands completely destroys any expectation of privacy that defendant had in the area where the automobile was parked. We therefore hold that defendant most likely had no legitimate expectation of privacy in the area where the hit-and-run vehicle was discovered, and that if such an expectation indeed existed, the trivial violation thereof which led to discovery of the hit-and-run vehicle was fully justified by exigent circumstances.

• 3 We now turn to the question of whether the warrantless seizure of defendant's automobile was a violation of his fourth amendment rights. Generally, objects which are not inadvertently discovered by police officers may never be seized without a warrant unless the objects are contraband, are dangerous in themselves, or are found within the immediate proximity of a lawfully arrested individual. (Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022.) Coolidge provides no solace to the defendant, however, for we are of the opinion that the discovery of the hit-and-run vehicle was inadvertent. This aspect of the instant case is virtually indistinguishable from the situation with which we were recently confronted in People v. Smith (1981), 101 Ill. App.3d 772, 428 N.E.2d 641. In Smith, the police received an anonymous tip that an item of stolen property was at a particular location. The police proceeded to that site, found defendant in possession of the stolen property, seized the property, and arrested defendant. We held that the discovery of the stolen property was inadvertent, because the police were conducting an investigation based solely on an informant's tip and were not certain what they would find. Here, as in Smith, the officers were acting entirely on the basis of an anonymous phone call; they did not know for certain that they would find the hit-and-run vehicle at the premises where defendant resided. Therefore the discovery of the automobile was inadvertent, and its seizure was not violative of defendant's fourth amendment rights as delineated in Coolidge.

• 4 Moreover, the introduction of evidence obtained through an improper seizure of defendant's automobile would not have required reversal of his conviction under the circumstances of this case, for the identity of defendant was not at issue. His trial testimony clearly established that he hit someone with his car at the time and place of the victim's death. Therefore, the evidence introduced at trial that was gained as a result of the seizure of defendant's vehicle, which consisted mainly of information that "fits" were obtained between the damaged portions of the vehicle and pieces of the vehicle found at the scene of the accident and knowledge that blood and hair found on the vehicle may have been that of the victim, was purely cumulative, and was beyond a reasonable doubt immaterial to defendant's conviction. See Chapman v. California (1967), 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824.

• 5 Finally, in view of the observations made by the police officers while legitimately present on defendant's premises, their knowledge that defendant frequently drove the damaged vehicle, and defendant's admission to Sergeant Hill that he had been involved in an accident, there was clearly probable cause for issuance of a warrant for the performance of skid tests with defendant's ...


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