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10/01/87 the People of the State of v. Richard S. Daugherty

October 1, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

RICHARD S. DAUGHERTY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

514 N.E.2d 228, 161 Ill. App. 3d 394, 112 Ill. Dec. 762

Appeal from the Circuit Court of Du Page County; the Hon. John J. Nelligan, Judge, presiding. 1987.IL.1476

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. LINDBERG, P.J., and NASH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

This is an interlocutory appeal by the State pursuant to Supreme Court Rule 604(a) (107 Ill. 2d R. 604(a)) from a pretrial order suppressing all evidence seized from and statements made by defendant, Richard S. Daugherty, which the trial court found resulted after a consent to enter his residence was given by his wife due to an improper subterfuge employed by the police. The only issue before us is whether the trial court's ruling suppressing this evidence was manifestly erroneous.

Defendant was charged with the unlawful possession of more than 30 grams but not more than 500 grams of a substance containing cannabis (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 704(d)). Defendant filed multiple motions to suppress statements and evidence contending, in part, that the evidence seized and statements given followed an illegal entry into his residence without a warrant and without consent. At a hearing on the motions, the following relevant testimony was adduced.

Defendant's wife, Karen Daugherty, testified that at approximately 7:30 p.m. on January 4, 1986, a Saturday, she was at the home occupied by her husband, her two children, and herself when she was visited by Officer David Barts of the Hanover Park police department. He informed her that he was a juvenile officer and had some more questions about a theft of money from her house on December 23, 1985, which she reported on December 26. Previously, one police officer had come shortly after the reported theft and another officer came a few days later. At the time Barts arrived, she felt that the theft case had been solved because the parents of their baby-sitter on the evening of the theft felt responsible and had promised to return the money. Barts asked to come in, and, although she refused, he came in anyway. He ordered her to show him where the money was taken from, and, after doing so, he asked to be shown where other money was kept around the house. When she took him into the kitchen, Barts saw marijuana on the counter and seized it. The officer then called another officer, and they searched the house. She further testified that after Barts threatened to take her children from her if she did not cooperate, she turned over to them some marijuana which was in a robe she had been wearing.

Officer Barts testified that he is a detective and juvenile police officer and went to defendant's home on January 4, 1986, both to talk about the theft report and to find out if drugs or marijuana were in the home. From reading other officers' reports about the theft and talking with defendant's baby-sitter, he received information concerning marijuana being in the residence. Also, in talking with the baby-sitter, he had learned that another girl was with her on the night the money was reported stolen. The baby-sitter had denied either had taken the money. Barts testified that he did not know that other officers had been to defendant's house, nor did he speak with the officer who made out the initial theft report. When he went to defendant's home that evening, he radioed to the patrol officer assigned to that area that he might need his assistance and to remain available.

When he arrived at the defendant's residence, he identified himself, showed Mrs. Daugherty his badge, and said he was there to talk with her about the theft she had reported. She agreed to talk and he went into the home. They sat down in the dining room and discussed the theft case. He asked to see where the money was taken from and was shown to the master bedroom. They then went into the kitchen and talked. He observed marijuana on the counter. He seized it and called for the other officer to come to the house. After the other officer arrived, Mrs. Daugherty made some telephone calls. Then, Barts asked if there was any more marijuana, and she took some marijuana from a robe she had been wearing. At that point defendant arrived, and he became upset. He was advised of his Miranda rights and, at the officers' request, informed them of additional marijuana in the bedroom closet, which defendant turned over to them. Defendant also turned over a scale and some pipes. He was then arrested. His wife was not arrested or subsequently charged with a crime.

Barts testified that he did not have a search warrant for defendant's residence, nor did he request defendant's wife to sign a consent to search form. He also admitted that, prior to going to the defendant's home, he had read a police report of the theft which indicated that $100 was stolen from a dresser within the home.

Officer Mark Gatz testified that he was the backup officer and was told by Barts that he was going to interview someone about a theft case and that he had information that a lot of "dope" was in the residence.

Following the hearing, the trial Judge specifically stated that he found the real reason Officer Barts went to defendant's residence was to investigate if marijuana was present in the home and that the theft investigation was merely a ruse on the part of the officer. He further found that defendant's wife consented to Barts' entry because of the ruse only, not that the officer forced his way into the home. The motions to suppress were granted.

The State contends the trial court's finding that the officer used a ruse in obtaining permission to enter the home was in error, as the evidence shows that he went to the home for two reasons, to investigate the theft and to check the claim that marijuana was in the home. Further, the State argues that the consent to enter was still voluntary despite Barts' "less than candid reasons for his entry." Once inside the house, the State posits, Barts was entitled to seize ...


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