Appeal from the Circuit Court of Kane County; the Hon. Joseph
M. McCarthy, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
The State appeals (87 Ill.2d R. 604(a)(1)) from an order of the circuit court of Kane County which granted the pretrial motion of the defendant, Michael Gardner, to quash search warrants and to suppress the evidence which was seized pursuant to the warrants. The State's sole contention on review is that the court below incorrectly granted the motion to quash and suppress, because a police officer who is engaged in a routine, nighttime check of a business establishment and finds an unlocked door may make a warrantless entry of the building without violating the fourth amendment to the United States Constitution (U.S. Const., amend. IV).
In a six-count indictment entered on December 14, 1982, the grand jury charged the defendant with three counts of felony theft (Ill. Rev. Stat. 1981, ch. 38, pars. 16-1(a)(1) and 16-1(d)(1)), two counts of possessing a stolen motor vehicle (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 4-103(a)(1)), and possession of a vehicle component part whose vehicle identification number had been removed (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 4-103(a)(4)).
Shortly after he was arraigned, defendant filed a motion which requested that the trial court quash certain search warrants the police obtained and suppress the evidence law enforcement officers seized that day. Among other things, the motion stated that police officers did not have probable cause to enter the premises in question and that the initial search of the building was unreasonable. The court held a hearing to adjudicate the pretrial motion to quash and suppress. The crucial inquiry which the parties addressed at the suppression hearing was whether the initial entry of the building was constitutionally permissible under the fourth amendment. The court below granted the defendant's motion. In its supplemental order the court determined that the warrantless entry of the building was without probable cause, that no exigent circumstances existed to support the warrantless entry, and, therefore, that the unlawful entry could not justify either the issuance of the search warrants or the admission into evidence of the items discovered on the premises.
After the court granted the motion to suppress, the State filed the requisite certificate of substantial impairment as well as a timely notice of appeal.
Officer Frederick Behner of the Batavia police department testified that he was the affiant in a November 23, 1982, complaint which sought to obtain a warrant to search the premises of American Automobile Repair, which was located at 590 South River Street in Batavia, Illinois. The officer identified a copy of his affidavit. Defense counsel stated that he would not challenge the truthfulness of the statements in the affidavit; consequently, the court ruled that the affidavit spoke for itself and, thus, that defense counsel could not question Officer Behner regarding the matters contained in the affidavit.
Officer Behner's affidavit stated that on November 23, 1982, he was conducting, as part of his patrol duties, routine checks of businesses in Batavia to determine whether they were secure. During this patrol the officer checked the rear door on the east side of the building housing American Automotive Repair and determined that the door in question was unlocked. The testimony presented at the suppression hearing reflects that at approximately 4 a.m. Officer Behner discovered that the door was closed but unlocked. The affidavit recites further that the officer followed official police department policy and entered the building to determine whether any unauthorized person had entered the premises and to ascertain who the owner of the business was in order to notify the owner that the building was not secure. Upon entering the building, Officer Behner observed a blue AMC Jeep CJ-5 inside the structure and noticed that the vehicle had no Illinois license plates affixed to it but contained an Addison, Illinois, city sticker on the front windshield. Behner also saw on the interior walls of the building pictures of Michael Gardner in the presence of a stock car and numerous trophies.
According to the affidavit, Officer Behner completed the security check of the building and returned to the Batavia police department where he contacted an officer of the Addison police department; the Addison police officer informed Behner that the Addison city sticker in question was assigned to a blue 1974 AMC Jeep CJ-5 which Leslie Kopecky owned and that the jeep had been stolen a day earlier. In addition, the affiant stated that he had personal knowledge that Michael Gardner had been convicted of theft and was known in the community as an automobile thief.
At the suppression hearing, Officer Behner related that he returned to American Automotive Repair with a search warrant seven hours after he originally noticed that the door was unlocked. His testimony revealed that the items recovered from the premises pursuant to the first search warrant and a later search warrant related to two stolen jeeps, including the one which Mr. Kopecky owned. At the conclusion of the hearing the court granted defendant's motion to suppress on the grounds that the officer's original entry was illegal.
The present case presents a single, narrow legal question: whether a police officer violates the fourth amendment to the United States Constitution (U.S. Const., amend. IV) when, as part of a routine, nighttime security check of commercial establishments, he finds that the door to such a building is unlocked and enters the premises to ensure that criminal conduct has not occurred or is not afoot. Relying on cases from sister jurisdictions (e.g., State v. Myers (Alaska 1979), 601 P.2d 239; People v. Parra (1973), 30 Cal.App.3d 729, 106 Cal.Rptr. 531, cert. denied (1973), 414 U.S. 1116, 38 L.Ed.2d 743, 94 S.Ct. 849), the State argues that the entry in the present case was reasonable under the fourth amendment. The defendant, who attempts to distinguish the cases upon which the State relies, concludes that the trial court's order quashing the search warrants and suppressing the evidence was proper, because Officer Behner's warrantless entry did not fall within the ambit of any of the few, well-delineated exceptions to the fourth amendment's warrant requirement.
• 1 Initially, we note that the parties have not cited any Illinois case which has addressed the present issue, and our independent research has not revealed any. Further, the record discloses that defendant had the opportunity to challenge the truthfulness of the factual statements contained in the affidavit which Officer Behner offered in support of the complaint for a search warrant. (See, e.g., Franks v. Delaware (1978), 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674; People v. Kelly (1983), 118 Ill. App.3d 794, 455 N.E.2d 826; People v. Redmond (1983), 114 Ill. App.3d 407, 449 N.E.2d 533; People v. Born (1983), 113 Ill. App.3d 449, 447 N.E.2d 426.) However, he chose not to do so at the suppression hearing, as is reflected in defense counsel's remark that counsel was not alleging that the affiant deliberately lied. Thus, because an affidavit in support of a search warrant is presumed valid (People v. Born (1983), 113 Ill. App.3d 449, 455, 447 N.E.2d 426, 430, citing Franks v. Delaware (1978), 438 U.S. 154, 171, 57 L.Ed.2d 667, 682, 98 S.Ct. 2674, 2684), and since the defendant has not challenged the veracity of the statements in the affidavit, those statements are viewed as true for purposes of this appeal.
The defendant correctly observes that warrantless searches and seizures are per se unreasonable under the fourth amendment unless they fall within a few specifically established and well-delineated exceptions. (Katz v. United States (1967), 389 U.S. 347, 357, 19 L.Ed.2d 576, 585, 88 S.Ct. 507, 514; People v. Pakula (1980), 89 Ill. App.3d 789, 793, 411 N.E.2d 1385; People v. Sanders (1976), 44 Ill. App.3d 510, 514, 358 N.E.2d 375, 378; People v. Creed (1975), 34 Ill. App.3d 282, 284, 339 N.E.2d 305, 307-08.) In this State those few exceptions are search by consent, search incident to arrest, and search predicated upon probable cause where there are exigent circumstances which make it impractical to obtain a warrant. (People v. Pakula (1980), 89 Ill. App.3d 789, 793, 411 N.E.2d 1385, 1389; People v. Creed (1975), 34 Ill. App.3d 282, 284, 339 N.E.2d 305, 308.) It is also well settled in Illinois that the protection of the fourth amendment extends to commercial premises in which there is a reasonable expectation of privacy against governmental intrusion. People v. Stamps (1982), 108 Ill. App.3d 280, 285, 438 N.E.2d 1282, 1289; People v. Davis (1980), 86 Ill. App.3d 557, 559-60, 407 N.E.2d 1109, 1112; accord, State v. Myers (Alaska 1979), 601 P.2d 239, 242; People v. Parra (1973), 30 Cal.App.3d 729, 735, 106 Cal.Rptr. 531, 535, cert. denied (1973), 414 U.S. 1116, 38 L.Ed.2d 743, 94 S.Ct. 849.
In his highly respected treatise dealing with the fourth amendment, Professor LaFave recognizes that a warrantless entry of a commercial establishment is permissible under the fourth amendment when a law enforcement officer discovers that commercial premises are unlocked and unattended in the evening hours. (2 W. LaFave, Search & Seizure sec. 6.6(b), at 474 (1978).) This statement of the law is predicated upon and finds support in the two cases upon which the State places primary emphasis in this appeal (State v. Myers (Alaska 1979), 601 P.2d 239; People v. Parra (1973), 30 Cal.App.3d 729, 106 Cal.Rptr. 531, cert. denied (1973), 414 U.S. 1116, 38 L.Ed.2d 743, 94 S.Ct. 849).
In State v. Myers (Alaska 1979), 601 P.2d 239, police officers who were conducting a routine, nighttime security check of commercial premises discovered a light emanating from an open door of a theater. They entered the building, walked a few steps down a hallway to a door leading to the backstage area, heard voices coming from that area, and then looked in. They observed the defendants, one of whom was the manager of the theater, sitting on the floor with cocaine paraphernalia nearby. In upholding the subsequent arrest and seizure of the contraband, the Alaska Supreme Court concluded that the entry and subsequent limited search were police actions that did not require a warrant and found them reasonable within the meaning of ...