Appeal from the Circuit Court of Lake County; the Hon. William
D. Block, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Defendants, Dennis Koniecki and Jaclyn Holk, were both separately charged with unlawful possession with intent to deliver more than 500 grams of cannabis (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 705(e)) and unlawful possession of a controlled substance, less than 15 grams of LSD (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1402(b)), and Koniecki was further charged with unlawful possession with intent to deliver more than 30 grams of cocaine (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(a)(2)), unlawful possession of more than 30 grams of a controlled substance, cocaine (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1402(a)(2)), and unlawful possession of a firearm without the requisite firearm owner's identification card (Ill. Rev. Stat. 1983, ch. 38, par. 83-2). Motions to quash arrest and suppress evidence were filed by the defendants and, following an evidentiary hearing, were granted by the trial court. The State brings this interlocutory appeal pursuant to Supreme Court Rule 604(a)(1) (87 Ill.2d R. 604(a)(1)).
The issue raised is whether the decision of the trial court suppressing the evidence was manifestly erroneous. Although no appellate brief has been filed by defendant, the question presented can be decided on the merits without the aid of an appellee's brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.
The evidence adduced at the hearing on the motion to suppress, all through the testimony of police officers, is summarized as follows. On August 10, 1983, at approximately 4:45 a.m. defendant Holk appeared at the city of Highwood police station in a disheveled, frightened, and disoriented state. She was breathing heavy, was red in the face, and her knees were red and dirt-covered. She said she had been attacked and had difficulty in responding to questions. She also said "they" attacked her. She then commented that her boyfriend was trying to kill her "because of drugs." She finally stated she lived on Naida Street in Highland Park, although she repeatedly failed to answer questions. The Highland Park police were called and arrived within 15 minutes. Holk again related someone was trying to kill her and appeared very paranoid when they left to go to the Highland Park police station.
At the Highland Park police station, Holk was still emotional, fearful, and unresponsive to questioning. Lieutenant Rash of the Highland Park police department was called to the station because he lived across the street from Holk. He knew that Koniecki and Holk lived there and had, on several occasions, seen strange behavior by both of them and was familiar with several domestic violence calls from them to his department. He also was aware that Holk had previously received psychiatric treatment. Holk was still agitated and fearful and repeatedly told Rash that "he's going to kill me," although she did not mention Koniecki specifically. When asked where Koniecki was, she replied that she did not know. Rash then dispatched other officers to go to her residence because he was concerned that Koniecki might be injured or dead. The officers were told to check on the well-being of the man living there.
Officers Cameron and Cohen of the Highland Park police department were dispatched to Holk's residence and arrived at 6 a.m. They were told to check the well-being of the resident inside, Dennis Koniecki. A Mercedes, used by both Holk and Koniecki, was in the driveway, and a large dog, in front of the front door, was barking and growling at them. The animal warden was called. He arrived in about 15 minutes and assisted in placing the dog inside the Mercedes. The officers then approached the front door and were confronted by a second dog that was inside the door. This dog was barking and growling as well. The officers knocked and called, but received no response. No lights were on. They then walked around the house and entered an unlocked breezeway door. They first went into the basement to check whether anyone was there. Officer Cameron observed dirt and dog debris on the floor along with some brown, plant-like substance. He saw a desk which had a large scale on it and some brown and green plant-like substance on it. He then observed five large plastic garbage bags, two of which were open at the top, that contained more green and brown plant-like substances. He did not open them. The officers left the basement and were unable to search the rest of the home because of the dog.
Lieutenant Rash was again contacted, and he had Holk brought to the residence to assist in getting the dog out. Once the dog was removed, Cameron and Lieutenant Largo entered the residence through the front door. They found no one on the first floor. Cameron did observe a piece of U.S. currency, which was tightly rolled with a white powder substance on the tip of the currency. No one was found on the second floor. On a table in the study Cameron saw a small gram-type scale with a white powder residue on the weighing portion of the scale. He also observed on the table a larger ash tray with a spoon with an elongated handle. Nothing was seized.
After finding no one inside the residence, Cameron and Lieutenant Largo exited the house. Cameron then walked around the residence to the breezeway by himself and went into the basement a second time to examine the garbage bags. Although at the time he was first in the basement he did not suspect marijuana was in the bags, after the search of the rest of the house and from what he observed, he now felt contraband might be in the bags. He examined the bags and believed them to contain "possibly marijuana." He called other officers, who confirmed the bags contained marijuana. The officers then went outside to secure the residence and await a search warrant.
Lieutenant Rash then told other officers to take Holk to the hospital because of her mental condition, and to arrest her for possession of marijuana if she was released. While the officers were awaiting a search warrant, Koniecki arrived and was arrested for possession of marijuana. Holk was taken to Highland Park Hospital, where she was examined by Dr. Kontrick. He told Officer Cohen that Holk was not suicidal and had personal problems. She was not admitted and was free to go. Cohen then advised her that she was under arrest for felony possession of marijuana and she was taken to the Highland Park police station.
At approximately 9 a.m., while she was being processed during the booking procedure, Holk was asked to sign a consent to search form for her residence. She said "I don't care," and signed the form after reading it. The officers felt that at this time she was calm and understood what she was doing. The search of the residence was conducted after a search warrant and the consent to search were obtained.
The trial court found the police officers' testimony to be credible and that they did not enter the residence for any purpose other than to check on the well-being of the occupant. However, the court concluded that there was neither probable cause to believe there was an injured person in the premises nor were there "exigent circumstances" for the officers to act without first securing a warrant. The court also found that even assuming the initial entry was proper, Officer Cameron's re-entry after the search for any injured person had concluded was illegal. Further, the consent to search was held to be involuntary under all the circumstances. The motions to suppress by both defendants were granted.
• 1 The crux of the State's argument on appeal is that the initial entry and search of the residence by the police was pursuant to a reasonable belief that an injured person may have been inside the house. The State contends that under this circumstance, the lack of a search warrant was excused by the "exigent circumstances doctrine." The State further maintains that the subsequent search and seizure of evidence in the residence was justified because of a "valid consent authorized by defendant Holk."
Our analysis begins with an examination of the question of the initial entry into and the search of the residence by the police without a warrant. It is axiomatic that the physical entry of the home is the chief evil to which the wording of the fourth amendment is directed, and a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the fourth amendment on agents of the government who seek to enter the home for purposes of search or arrest. (Welsh v. Wisconsin (1984), 466 U.S. 740, 748-49, 80 L.Ed.2d 732, 742, 104 S.Ct. 2091, 2100.) Thus, it has been decided that warrantless felony arrests in the home are prohibited by the fourth amendment, absent probable cause and exigent circumstances. (Payton v. New York (1980), 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371.) It has also been separately recognized that the fourth amendment does not bar police officers from making warrantless entries and searches when they "reasonably believe that a person within is in need of immediate aid." (Mincey v. Arizona (1978), 437 U.S. 385, 392, 57 L.Ed.2d 290, 300, 98 S.Ct. 2408, 2413; see 2 W. LaFave, Search & Seizure sec. 6.6(a) (1978).) And, the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. Mincey v. Arizona (1978), 437 U.S. 385, 393, 57 L.Ed.2d 290, 300, 98 S.Ct. 2408, 2413.
In Illinois, reviewing courts have adopted the "exigent circumstances" rule as it applies to the entry into private premises in order to effectuate a warrantless felony arrest (People v. Abney (1980), 81 Ill.2d 159, 407 N.E.2d 543), and have recognized an "emergency" exception to the search warrant requirement whereby police may make a warrantless entry into private premises if they reasonably believe an emergency exists which dictates the need for immediate action for the purpose of providing aid to persons or property in need thereof. (People v. Bondi (1984), 130 Ill. App.3d 536, 539-40, 474 N.E.2d 733; People v. Meddows (1981), 100 Ill. App.3d 576, 579-81, 427 N.E.2d 219, and cases and authorities cited therein.) Although the court below and the State in its appellate brief appear to refer to the "exigent-circumstances" rule applicable to arrest situations, the circumstances here in which a warrantless entry was made to determine the well-being of the resident more properly fall within the "emergency" exception to the warrant requirement category of cases. In these latter cases, we are generally concerned with an exception to the search warrant ...