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People v. Cohen

OPINION FILED AUGUST 19, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

PAUL COHEN ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County; the Hon. Charles F. Scott, Judge, presiding.

PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 18, 1986.

Defendants, Paul Cohen and Earl Sklar, were charged by indictment with the unlawful possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(a)(2)), unlawful possession of a controlled substance (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1402(b)) and unlawful possession of cannabis (Ill. Rev. Stat. 1983, ch. 56 1/2, pars. 704(b), 704(c)). Defendants' pretrial motions to suppress the contraband evidence seized in defendant Cohen's residence were granted by the trial court on the ground it had been obtained as a result of an unlawful search by a police officer.

The State has appealed, contending (1) the warrantless entry of the Cohen residence by the police officer was properly based upon probable cause and exigent circumstances; (2) the seized contraband was observed by the officer in plain view from a place where he had a right to be; and (3) defendant Sklar lacked standing to seek suppression of the evidence as to him.

Officer William Tellone of the Highland Park police department and defendant Paul Cohen testified at the suppression hearing. Tellone stated that at about midnight on December 23, 1984, he was investigating vandalism cases in which the windows of 18 to 23 vehicles had been damaged or broken out. The officer noticed a car parked in front of the residence at 1150 Melvin Drive which had been so vandalized and learned by a radio license check that it belonged to John and Mary Nicholas of 1013 Central Avenue in Highland Park. The officer saw activity in the house in front of which it was parked and decided to inquire there for the owner of the car. At that time, the officer had no knowledge of the presence of drugs in that residence nor was he investigating any criminal activity there. Officer Tellone testified that he rang the doorbell and it was answered by defendant Earl Sklar, who opened it approximately 3 feet. The officer then noticed the odor of burnt cannabis on Sklar and emanating from the interior of the house, and also saw a smoky haze in the living room of the house.

The officer informed Sklar of the vandalism to the car and inquired whether he owned it or the residence. Sklar responded that the car belonged to John Nicholas and the homeowner was Paul Cohen, the co-defendant. Officer Tellone testified that when he asked to speak to the homeowner, and to John Nicholas regarding the vandalism, Sklar stepped back and opened the door wider, at which time Tellone stepped into the foyer of the residence. Sklar then called out in a loud voice, "It's the police," and called John Nicholas into the foyer. The officer testified that when Nicholas appeared he also noticed a strong odor of burnt cannabis from his person. The officer told Nicholas he had found vandalism to his car and asked to speak to the owner of the house. Nicholas said the owner was Paul Cohen and that he was in his bedroom; Nicholas then turned and walked down the hallway with Officer Tellone following. At about halfway down the hall, Nicholas stopped and stepped to the side to let the officer pass him. Officer Tellone continued along the hall to its junction with another hall leading to bedrooms and turned down it to a bedroom in which he saw a light and heard activity, a distance of some 50 feet from the front door of the home.

Officer Tellone testified he walked to the door of the bedroom, which was fully open. From the doorway he saw a glass mirror on the floor of the bedroom with seven lines of cocaine on it. The officer noticed a strong odor of burnt cannabis from the room and saw a water pipe, a clear plastic bag containing a white powdery substance, plastic baggies containing folded paper packets, and a large gram scale on which was a white powder. Defendant Paul Cohen stepped out of the room and there were two other men inside. Tellone placed the three men under arrest and at that time heard a door open in the kitchen and three persons leave the house; he then called for assistance on his radio. When other officers arrived, Officer Tellone secured the residence so that no one could enter or leave and transported the three men to the police station. Tellone then sought a search warrant for the premises and returned at 7:45 a.m. with the warrant and, with other officers, searched the premises seizing drugs and drug paraphernalia.

Officer Tellone further testified that his purpose in going to the bedroom was to determine if the owner of the premises was aware that marijuana was being smoked in the house and if all of the persons therein belonged in the house. He stated that he did not open the bedroom door nor did he enter that room at the time he first saw the drugs in it, and that no search was made in the house until after the warrant was obtained. The officer also testified regarding his familiarity and experience with various illegal drugs and drug paraphernalia, such as those seized in the Cohen residence.

Defendant Paul Cohen testified that he lived in the residence with his parents who were out of town on the night in question; at that time, only defendants Cohen and Sklar and five others were present. Cohen stated some cannabis smoking had occurred in the house earlier that night and that neither he nor any other family member had given permission for police officers to enter or search it. Cohen also testified that his bedroom door was closed when Officer Tellone reached it and defendant Sklar had opened the door to tell Cohen there was a policeman in the house. Cohen described Sklar as a frequent visitor to the house who had sometimes stayed overnight; he and the others had come over that night to watch movies.

• 1, 2 The ultimate test under the fourth amendment of the United States Constitution and section 6 of article I of the Illinois Constitution is one of reasonableness. (Marshall v. Barlow's Inc. (1978), 436 U.S. 307, 315-16, 56 L.Ed.2d 305, 313, 98 S.Ct. 1816, 1822; People v. Free (1983), 94 Ill.2d 378, 395, 447 N.E.2d 218, cert. denied (1983), 464 U.S. 865, 78 L.Ed.2d 175, 104 S.Ct. 200.) In determining whether law-enforcement officials acted reasonably in a given case, courts should judge the facts and circumstances known to officials at the time they acted. (People v. Smithers (1980), 83 Ill.2d 430, 434, 415 N.E.2d 327; People v. Olson (1983), 112 Ill. App.3d 20, 23, 444 N.E.2d 1147, appeal denied (1983), 94 Ill.2d 556.) It is a basic principle of fourth amendment law that warrantless searches and seizures are presumptively unreasonable unless they fall within a few exceptions: search by consent, search incident to arrest, and search based on probable cause with exigent circumstances present which make it impractical to obtain a warrant. (Katz v. United States (1967), 389 U.S. 347, 357, 19 L.Ed.2d 576, 585, 88 S.Ct. 507, 514; People v. Hoffstetter (1984), 128 Ill. App.3d 401, 404, 470 N.E.2d 1247; People v. Gardner (1984), 121 Ill. App.3d 464, 467-68, 459 N.E.2d 676, appeal denied (1984), 101 Ill.2d 548.) The proscriptions of the fourth amendment apply equally to entries of a private residence to seize property or to arrest persons. People v. Abney (1980), 81 Ill.2d 159, 166, 407 N.E.2d 543; Payton v. New York (1980), 445 U.S. 573, 585, 63 L.Ed.2d 639, 650, 100 S.Ct. 1371, 1379; People v. Wilson (1980), 86 Ill. App.3d 637, 641-42, 408 N.E.2d 988.

I

The State contends first that the warrantless entry by the officer into defendant Cohen's residence did not violate the fourth amendment as it was based upon probable cause and exigent circumstances requiring immediate action. The State argues that by the strong odor of burnt cannabis the officer had probable cause to believe that the crime of possession of an illegal substance was taking place in the officer's presence and the exigent circumstance that it was likely to be destroyed if the officer left the premises made it impractical to obtain a search warrant.

In their briefs, neither the State nor defendants discuss whether the officer's initial entry to the Cohen residence was authorized by the consent of defendant, Earl Sklar, who opened the door. The focus of their arguments is on the authority of the officer to proceed into the bedroom areas of the home where the contraband was viewed by him. The question of Sklar's status in the home will be addressed later in this opinion in relation to the issue of his "standing" to seek suppression of evidence seized in the Cohen home. In any event, assuming, arguendo, the officer was lawfully in the foyer of the residence while making inquiries regarding the vandalized vehicle parked in front of the house, the question remains whether he was authorized in these circumstances to proceed to the other areas of the home.

• 3 It has been established that the detection of the odor of burnt cannabis by a trained police officer is a permissible method of establishing probable cause that the substance is present. (People v. Stout (1985), 106 Ill.2d 77, 87, 477 N.E.2d 498; People v. Kelley (1982), 104 Ill. App.3d 51, 53, 432 N.E.2d 630; People v. Erb (1970), 128 Ill. App.2d 126, 132, 261 N.E.2d 431.) From his position outside the front door of the Cohen residence, Officer Tellone smelled the odor of cannabis on the person of defendant Sklar and coming from the foyer; he also noticed a smokey haze in the adjoining living room of the home. The defendants do not dispute that the training and experience of the officer was sufficient to enable him to identify the odor. Thus, having probable cause to believe that criminal activity was taking place, ...


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