Appeal from the Circuit Court of Whiteside County; the Hon.
Robert W. Castendyck, Judge, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Following a bench trial in the circuit court of Whiteside County, the defendant, Donald Seidel, was found guilty of unlawful possession of cannabis and unlawful possession of a controlled substance (LSD) in violation of section 4(d) of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 704(d)) and section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1402(b)), respectively. Defendant was sentenced to serve 30 days in the county jail and two years on probation. He appeals his convictions. We affirm.
On June 24, 1981, Officer Pete Zolli of the Rock Falls police department was patrolling the neighborhood of 601 Third Avenue in Rock Falls, where defendant resided with his grandmother. Around 4:04 p.m., Zolli observed the defendant as he met another male, later identified as Mike Bushaw, at the rear door of the residence. A bag containing what appeared to the officer to be cannabis was exchanged during the encounter.
Bushaw appeared to have seen Zolli's car which was partially concealed by a garage. Bushaw got into his car and drove off. Zolli followed for several blocks. At one point Bushaw hesitated as if to throw something from the car as he proceeded down an alley. Bushaw ran a stop sign and was ultimately stopped and given a traffic warning by Zolli. Zolli then returned to the alley; and he located, near the point where Bushaw had hesitated, a bag which was later determined to contain 13 grams of a variety of cannabis known as "Mexican Sensimillion."
Zolli returned to the defendant's residence where he met Mr. and Mrs. Thicksten, the defendant's grandparents. The Thickstens stated that they owned the residence and that the defendant occupied a room on the second floor. Officer Zolli asked whether the defendant rented the room, and Mrs. Thicksten stated that he did not. Mr. Thicksten said nothing. After explaining that he suspected that the defendant may have been involved in a recent cannabis transaction, Zolli requested permission to search the defendant's room. Mrs. Thicksten picked up a key and led the officer to the defendant's room, opened the door and allowed him to enter. Officer Zolli observed a mattress on the floor with a plant-like substance on it, both loose and in a plastic bag. On the floor beside the mattress were plastic bags and bottles containing capsules. Zolli told Mrs. Thicksten that he would be coming back later to do a more thorough search of the room if she would permit it.
Zolli returned to the police station and consulted with the State's Attorney concerning the investigation. That evening, Zolli returned to the Thicksten residence with Lieutenant Mangan. Mrs. Thicksten signed a consent-to-search form and gave the officers the key to the defendant's room. The officers proceeded upstairs, entered the room and gathered various containers of material, later determined to be cannabis, weighing just under 17.3 grams.
Around 8 p.m., while the search of the defendant's room was underway, the defendant entered the room. The defendant was read his Miranda rights, he waived them, and agreed to talk to the officers. Defendant asked what was the fine for having 28.8 grams of cannabis. Zolli said that was a Class A misdemeanor. The defendant admitted that the material found in the room belonged to him as did the "Mexican Sensimillion," which Zolli had retrieved from the alley after chasing Mike Bushaw earlier in that day.
The defendant was taken to the Rock Falls police station. A search of the defendant's person revealed a plastic bag containing a piece of white, perforated paper located between the laces and the tongue of his left tennis shoe. The defendant again waived his Miranda rights and admitted that the paper contained LSD. The defendant was charged in two counts with unlawful possession of cannabis and LSD. He pleaded not guilty and filed a motion to suppress evidence based on illegal search and seizure.
At the suppression hearing, Mrs. Thicksten stated that the defendant had come to live with her about six months earlier because of family problems at home. At the time of the search, defendant was one month over age 18. According to Mrs. Thicksten, the defendant paid rent of $10 per week. In addition to the defendant's room, Mrs. Thicksten said she rented out two other rooms on the second floor of her house. Although Mrs. Thicksten neither cleaned the rooms nor did the laundry for her guests, she had, on two or three occasions, gone into the defendant's room to remove various items of personal belongings that she had stored there. Generally, though, she would ask the defendant to get for her what she needed from the room. The particular room occupied by the defendant had not been rented out prior to the defendant's arrival in the household. Mrs. Thicksten's renters generally locked their doors to their rooms; however, the defendant had never specifically told Mrs. Thicksten not to enter his room.
Based upon the testimony of Mrs. Thicksten and Officer Zolli, the trial court made findings of fact and concluded that Mrs. Thicksten "had (a) common authority over the premises, and- or (b) she possessed sufficient relationship to the premises sought to be inspected to give her own consent." Defendant's motion to suppress was denied accordingly.
The matter proceeded to trial, the defendant was found guilty, convicted, and sentenced as aforesaid. In this appeal, defendant raises two issues: (1) whether Mrs. Thicksten had authority to consent to a warrantless search of the defendant's locked bedroom; and (2) whether the State proved beyond a reasonable doubt that the defendant possessed more than 30 grams of cannabis where the evidence established that he had lesser quantities in his possession on two separate occasions.
One of the exceptions to the constitutional requirement that law enforcement officials obtain a valid search warrant prior to conducting a search of private property is that the search be conducted pursuant to the voluntary consent of a person with authority to waive the warrant requirement and authorize the search. The defendant himself need not have given consent if the prosecution proves "that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." (United States v. Matlock (1974), 415 U.S. 164, 171, 39 L.Ed.2d 242, 250, 94 S.Ct. 988, 993.) Whether a third party possessed the requisite authority over or relationship to the premises sought to be searched is clearly a question of fact. Some guidance to the decision-making process can be found, however, in footnote 7 of the Matlock opinion. There the Supreme Court states:
"Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, [citations] but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." (415 U.S. 164, 171 n. 7, 39 L.Ed. 242, 250 n. 7, 94 S.Ct. 988, 993 n. 7.)
Illinois courts>, faced with third-party consent issues, have attempted to resolve them by applying a "mutual use" or "common authority" test. (People v. Stacey (1974), 58 Ill.2d 83, 317 N.E.2d 24; People v. Heflin (1978), 71 Ill.2d 525, 376 N.E.2d 1367; People v. Johnson (1974), 23 Ill. App.3d 886, 321 N.E.2d 38.) Both Matlock and Stacey involved searches of bedrooms shared by the defendants and their respective wives (Matlock involved a de facto, as opposed to legal, relationship). In both cases, obviously, the wives, as co-inhabitants of the bedrooms, could be said to have had mutual use of the premises. Based on the conjugal relationships existing between the defendants and the persons ...