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04/06/88 the People of the State of v. Nancy Schmidt

April 6, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

NANCY SCHMIDT, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

522 N.E.2d 1317, 168 Ill. App. 3d 873, 119 Ill. Dec. 458 1988.IL.491

Appeal from the Circuit Court of Cook County; the Hon. Lester D. McCurrie, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., and McNAMARA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

After a bench trial, defendant, Nancy Schmidt, was found guilty of possession of more than 500 grams of cannabis with intent to deliver (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 705(e)) and sentenced to four years' imprisonment. She appeals, contending that the trial court erred in denying her motion to suppress evidence seized from the backyard of her home, that she was not proved guilty beyond a reasonable doubt, and that she was denied the effective assistance of counsel. The State contends that consideration of these matters on appeal was waived by defendant's failure to raise them in a post-trial motion before the trial court. We affirm.

On September 7, 1984, at approximately 4:30 p.m., Officer James Couch was at a nearby business establishment on an unrelated matter when he observed several large plants growing in defendant's yard located two doors away. From his vantage point he could see the tops of 16, six-foot-high plants which he believed to be cannabis. At that time he had been on the police force for 15 years and had observed marijuana growing on about one dozen occasions. In each instance subsequent analysis demonstrated that the plants were cannabis. Upon observation of the plants in defendant's yard, Officer Couch reported the matter to his supervisor and checked the home periodically to determine whether the occupants had returned. At approximately 9 p.m. a van was observed in the driveway and lights on in the home. Officer Couch reported this development, and he and four other officers drove to defendant's home. Upon arrival, Officer Couch and another officer went to the rear to determine whether the plants were still there, and two other officers were admitted to the home by defendant's husband. These officers immediately advised defendant that she was under arrest for the production of cannabis and advised her of her constitutional rights. When Officer Couch and his partner entered the house after checking the plants, defendant asked if they intended to arrest her husband. The officers answered affirmatively, and defendant replied that she alone had planted and nurtured the marijuana and that her husband should not be blamed or charged with regard to the plants because he took no part in raising them. At this point defendant was taken to the police station, and Officer Couch and his partner returned to the backyard.

The patch of marijuana was located in a rear corner of the lot and was partially bordered by a hedge, but neither the patch nor the yard was fenced. The yard contained grass and other green plants and weeds. However, the marijuana patch was weeded, contained no other variety of plants, was separated from the remainder of the yard by a border of logs laying on the ground, and, unlike the remainder of the yard, had been recently watered. The patch contained 21 plants, with one measured at nearly 11 feet tall, 15 were at least six feet in height and five were less than three feet in height. These plants were photographed and uprooted. In bulk they weighed 33.5 pounds and were seized by police. The leaves of the tallest plant and the five smallest plants were subsequently peeled off and sent to the laboratory for analysis. These leaves weighed 842.2 grams and upon analysis were found to be cannabis.

In a two-count information defendant was charged with possession of more than 500 grams of marijuana with intent to deliver (count 1) and with possession of more than 500 grams of marijuana (count 2). She was represented by privately retained counsel, who, prior to trial, filed a motion to suppress evidence taken from her property without authorization or warrant. During the hearing on this motion, defense counsel elicited testimony from Officer Couch that the evidence was seized from defendant's yard and that it was possible that he had time to get a search warrant between the time of observation and time of seizure, but that no warrant was obtained. The trial court ruled that it was unnecessary for the officers to obtain a warrant under the circumstances and denied the motion to suppress. Violation of the fourth amendment was again raised by defense counsel when the State sought admission of the photographs of the marijuana patch and during final argument, but the trial court's ruling did not change.

The defense attorney called Officer Couch during the hearing on the motion to suppress and subjected him to direct and redirect questioning. However, he did not cross-examine this officer during the trial and likewise did not cross-examine another officer who testified. No defense evidence was presented. During final argument the following remarks were made:

": There is no evidence of the intent to deliver. If there was any use made, it was for use between both Nancy and whomever else she wished to make a gift of any of it. So to get down to Count 2 [possession charge] --

THE COURT: Do you want to make a comment about Count 2, counsel?

: I have no comment about Count 2. They seem to have proven Count 2.

I would only make this observation: The possession of cannabis becomes a question of whether or not she had anything in her possession. It's out in her garden and I didn't bring with me the 4th Amendment. In ...


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