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People v. Sain





Appeal from the Circuit Court of Du Page County; the Hon. Helen C. Kinney, Judge, presiding.


The State appeals under Supreme Court Rule 604(a)(1) (87 Ill.2d R. 604(a)(1)) from a written order of the trial court granting the motion of defendant, John F. Sain, to suppress evidence seized from his home in a search conducted pursuant to a search warrant. The search warrant had been issued on the complaint of Officer Steven Arp, who had observed cannabis in defendant's living room when Officer Arp had entered defendant's home in a previous unsuccessful attempt to execute an arrest warrant for defendant on an unrelated charge. As a result of the seizure, defendant was charged by information with unlawful possession of more than 500 grams of a substance containing cannabis. (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 704(e).) Defendant's motion to suppress was granted, and the State filed a certificate of impairment and notice of appeal.

The only issue raised on appeal by the State is whether the trial court erred in granting defendant's motion to suppress evidence where it is contended the cannabis was discovered during an earlier, reasonable entry into defendant's residence by police who had an arrest warrant for defendant.

Defendant's written motion to suppress alleged that Officer Arp had obtained the information leading to the search warrant "without lawful authority" because he entered defendant's home to execute an arrest warrant with "no reason to believe Defendant was physically present in the domicile." The motion also alleged that impermissible force was used to gain entry and that no exigent circumstances existed to justify the entry.

At the hearing on the motion to suppress Steven Arp, a village of Lisle police officer testified that on June 29, 1982, at approximately 9:30 p.m. he received a dispatch that Sue McLennon was receiving harassing telephone calls again. The dispatcher told him McLennon believed the harassing calls were coming from defendant's residence. Arp had become aware on the previous day of an arrest warrant for defendant. The warrant was for assault (Ill. Rev. Stat. 1981, ch. 38, par. 12-1(a)), a Class C misdemeanor, against Sue McLennon. After receiving the dispatch, Arp went to defendant's residence where he could see light coming from inside the small, single-story house. Curtains covered the front windows which prevented his seeing inside. Officer Bandy arrived at defendant's home at approximately the same time as Arp arrived. Arp did not know the defendant and had never been to the house before.

Arp went to the back door and knocked. He did not recall how many times he knocked but believed it would have been more than one tap. After knocking he did not identify himself as a police officer nor announce that he was there to execute an arrest warrant.

While Arp was at the back door, Bandy called him over the radio and told him there had been no answer at the front door.

Fifteen to twenty seconds after Arp started knocking, and after Bandy had called him on the radio, Arp tried the door handle and discovered that the door was unlocked. Arp then opened the door and walked into an enclosed porch. He walked to another unlocked door, opened it, and walked into the kitchen. The kitchen lights were on. While in the kitchen he called out "hello, Police, [or] something to that effect" but received no response to this call, nor had he previously heard anything from inside the house.

He then walked into the living room, which was illuminated by the kitchen lights. In the living room, next to a chair, he observed a plastic bag containing a brown leafy substance that appeared to be cannabis. After observing the cannabis, Arp went to the front door, had a conversation with Bandy, then left the house by retracing his steps and leaving through the back door. He did not search any other rooms in the house concluding he "did not feel he [defendant] was in there" because the rest of the house was dark and he heard no noises.

Arp drove away but returned a few minutes later. On his return, he observed that defendant's car was there. Defendant came to the door and, after some conversation, came out and went with Arp to the police station. Arp did not enter the house at this time.

Arp later prepared a complaint for a search warrant based on the information he had gained while inside defendant's house. Arp executed this search warrant on July 1, 1982.

Timothy R. Bandy, a village of Lisle police officer, testified that he met Officer Arp at defendant's residence to assist him in executing the arrest warrant. Bandy knocked on the front door several times while Officer Arp went to the rear of the house. Bandy stood and knocked at the front door for no more than two or three minutes. He received no response. Later, while he was standing at the door, Officer Arp opened the front door from inside and told him defendant was not home. Bandy did not recollect seeing lights emanating from the premises.

Defendant testified that he got home on June 29, 1982, between 9 and 10 p.m. While he was sitting in a chair he saw flashing red lights, went outside, met Officer Arp, was arrested and taken to the police station. Later, he discovered that he had to use a hammer and nails to "beat the [back] door facing back together" and stated that the "door to the utility room which leads to the kitchen was broken." He testified that Sue McLennon formerly was his fiancee.

The trial court granted defendant's motion to suppress finding that there was "little in this record to suggest that the officer in this case held a reasonable belief that defendant was within his home * * *." The trial court also ...

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