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07/21/87 the People of the State of v. Gary Fonville

July 21, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GARY FONVILLE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

511 N.E.2d 1255, 158 Ill. App. 3d 676, 110 Ill. Dec. 935 1987.IL.1026

Appeal from the Circuit Court of Champaign County; the Hon. Harold L. Jensen, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. SPITZ, P.J., and McCULLOUGH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Defendant Gary Fonville was convicted following a jury trial of two violations of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1100 et seq.): unlawful possession with intent to manufacture a controlled substance, and unlawful possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401). The circuit court of Champaign County sentenced defendant to seven years' imprisonment.

Defendant appeals, raising four alleged points of error: (1) the denial of his motion to suppress evidence; (2) the refusal by the trial court to give a jury instruction defining the included offense of possession; (3) the allowing in of rebuttal witness testimony while refusing to give a limiting instruction regarding that testimony; and (4) the denial of defendant's request for additional time to produce a witness. We find none of the defendant's arguments persuasive and we affirm.

Defendant first contends the evidence in this case evinces an unreasonable "no-knock" entry without a prior announcement of authority and purpose. Defendant further asserts no exigent circumstances existed to excuse such an entry. He believes evidence obtained from the subsequent search is therefore constitutionally tainted, and asks we reverse the trial court's denial of his motion to suppress.

A search warrant was issued on February 6, 1986, by the circuit court of Champaign County. The complaint requesting issuance of a warrant indicated the apartment in question had been under surveillance for a period of at least one week. A "steady stream of individuals" was seen entering and exiting the premises. The average length of stay was less than 10 minutes. Two police informants had gone into the apartment and purchased heroin from the occupants. One informant observed a revolver in the apartment on a bed next to a table on which 30 to 40 foil packages purportedly containing heroin were noted. The complaint also recited the prior criminal records of certain persons observed in the premises, including convictions for battery (the defendant), theft, obstructing a police officer, and two drug-related offenses. The complaint concluded force would in all probability be required to gain entry in order to secure the safety of all persons involved and to prevent the destruction of evidence.

Several law enforcement officers testified at the suppression hearing regarding the procedures actually employed in entering the apartment in question on February 6, 1986. Officer Wayne Roosevelt of the Champaign police department testified officers were instructed at a presearch meeting this was not to be a "no-knock" search. Officers were to announce their presence before attempting entry. Michael Metzler of the Inter-Agency Task Force was given the responsibility of announcing the search to the occupants of the apartment. A telephone call would also be made to the apartment prior to entry.

Roosevelt recalled Metzler yelled, "[Police], open the door," into a bullhorn at the scene while running alongside the apartment building with SWAT team members. Officers then used a battering ram to force the door open. Roosevelt stated the officers also announced their presence as they entered.

Metzler testified he did not recall precisely what words he uttered into the bullhorn. The gist of his announcement, he stated, was to identify police officers as being present and to order the occupants to open the door. He stated he made the announcement as SWAT team members approached the apartment, and he was able to complete the announcement before the door was forced open. Metzler also recalled a number of apartment doors in the building were opened and people were looking out as a result.

James Davis, chief investigator for the Champaign County State's Attorney's office, stated he telephoned the apartment to announce the presence of police. He made the call from a portable telephone while parked about one-half block away. Davis stated the phone rang approximately 10 times as the SWAT team gained entry, but no one in the apartment answered. One officer testified the phone was ringing in the apartment when they secured the area, and he told the occupants not to answer it. Davis then went immediately to the residence.

A videotape taken of the entry and shown to the court is inconclusive. The tape shows several officers moving alongside the apartment building. Another officer walking along with them, presumably Metzler, is carrying a bullhorn. As officers readied themselves outside the door of the apartment in question, the other officer lifted the bullhorn closer to his mouth. SWAT team members then swung a battering ram once as if to measure the door or gain momentum, and a second time to break it down. Police then entered the premises.

Because there is no accompanying audio portion on the tape, it cannot be ascertained what, if anything, was announced. It is also difficult to gauge how much time was afforded the occupants to respond before the door was forcibly opened. Our review of the videotape indicates the announcement could have been made as Metzler moved alongside the apartment building with SWAT team members. It also could have been made a few seconds later as he raised the bullhorn closer to his mouth while in a more stationary position. The tape was shot from an angle which precludes an exact appraisal of the sequence of announcement and entry. The tape is not much help in measuring the elapse of time between announcement and entry.

The trial court denied the motion to suppress. The court assumed the entry was a "no-knock" entry, and determined the totality of exigent circumstances vindicated such an entry. The court found the information presented to the circuit court when the warrant was issued, including the documented existence of drugs and a handgun on the premises, as well as the prior offenses committed by the known occupants, reasonably justified the authorization and use of force to effectuate this search. The trial court commented in instances such as this "the nature of the announcement of the entry becomes somewhat circumscribed by necessity." Commenting further on its assessment of the police procedure employed, the court concluded:

"So, what under the circumstances did the officers do even though they were authorized to use force? There was an announcement, albeit it was almost contemporaneous with the entry, nevertheless there is testimony here and it's not rebutted, that that announcement caused other doors in that apartment complex to open and people to stick out their heads. In addition to that, Officer Davis testified that he called the residence on the telephone prior to the ...


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