Appeal from the Circuit Court of Madison County; the Hon.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
In this appeal brought by the State we consider the correctness of the trial court's ruling in granting the motion of defendants, Richard Shaffer and Teresa Shaffer, to suppress evidence seized from their residence.
At the hearing on defendant's motion to suppress, four witnesses testified: defendant Richard Shaffer and the three policemen involved in the search of defendants' residence. Officer Simon of the Collinsville Police Department testified that on August 13, 1981, at about 4 p.m. he noticed three large plants identified, as marijuana growing in the backyard of defendants' residence. At that time no one was at home. Officer Simon checked the residence periodically during the remainder of the afternoon to see whether the resident had returned home. Having determined sometime after 6 p.m. that the resident had returned, Officer Simon, together with Sergeant Trucano and Officer Knapp, went to defendants' residence at about 6:20 p.m. Officer Knapp watched the rear of the house, Officer Simon went to the backyard of the residence to be sure the marijuana plants were still in the garden and then went to the front door of the residence, and Sergeant Trucano went directly to the front door. When Officer Simon "walked up on the porch," he said, "the Sergeant was already inside."
Defendant Richard Shaffer, the first witness to testify, stated that he first observed two police officers in the house when he came into the "front room" of the rented residence. He said,
"I was in the kitchen with my wife fixing supper, and my younger brother came in the house, and he came in a hurry saying that the police officers was [sic] coming in the house. And I walked in the front room and they was [sic] in the front room already."
He said that there were four other persons in the "front room," that is, the living room, at the time: Scott Shaffer, who was defendant Richard Shaffer's younger brother but did not live at defendants' residence, two of Scott's friends, and defendant's brother-in-law. Defendant testified that Scott "came as the police officers arrived to [sic] the house, he came into the house and they followed him in." Scott's friends had, he said, arrived earlier. Defendant testified that his brother and brother-in-law were "frequent visitors" to his house and that he had never prevented his brother from inviting friends into defendants' home. Defendant Richard Shaffer had not consented to the officers' entry into the residence.
Sergeant Trucano testified that he had knocked on the front door of the residence and that defendant Richard Shaffer's younger brother had come to the door and had told him he could come in. The front door leads into the living room of the house. The witness said that defendant Richard Shaffer was in the living room, that his wife was in the kitchen cooking, that she came into the living room and that he explained the "circumstances" to defendant Richard Shaffer. This colloquy between the witness and defendants' attorney followed:
"Q. [Defendants' attorney] Okay. And then did you conduct a search?
A. I asked him if I could look around.
Q. And the search you conducted was inside the house, was it not?
Q. Okay. And what did you find?
A. I didn't find anything. Officer Knapp [who testified that he had come in the house through the back door after having been called by Sergeant Trucano] ...