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04/18/88 the People of the State of v. Wayne Mack Callaway

April 18, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

WAYNE MACK CALLAWAY, DEFENDANT-APPELLEE



Before considering whether the defendant's prior refusal to search overrode a subsequent consent to a search by a joint occupant, we will first address whether defendant's stepbrother's consent was a valid consent standing alone. The initial inquiry must be whether Kenneth's consent was voluntary. Defendant contends that Kenneth's consent was not voluntarily given but was obtained as a result of his submission or resignation to police authority. He claims that Kenneth was coerced by defendant's warrantless arrest, by the officers' securing the house, and by the officers' failing to advise him of his right to refuse to consent.

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

522 N.E.2d 337, 167 Ill. App. 3d 872, 118 Ill. Dec. 882 1988.IL.556

Appeal from the Circuit Court of Christian County; the Hon. Rolland Tipsword, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. KARNS and WELCH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

Defendant, Wayne Mack Callaway III, was charged by information with the offense of burglary on May 7, 1986. Subsequently, a motion to quash arrest and to suppress evidence was filed by defendant and a hearing on this motion was held on June 26, 1986. A written order denying defendant's motion to suppress evidence and to quash arrest was entered on July 17, 1986. Defendant filed a motion to reconsider the order denying defendant's motion to suppress but the circuit court again denied defendant's motion. After a stipulated bench trial, the circuit court found defendant guilty of the offense of burglary and sentenced defendant to four years' probation and to 89 days' incarceration in the county jail with credit for time served. Defendant filed a post-trial motion in which he alleged that the circuit court erroneously denied his motion to suppress evidence. On September 22, 1986, defendant's post-trial motion was considered. The Judge presiding at the hearing on the post-trial motion was not the Judge who presided at the hearing on the motion to suppress. After due consideration, on September 26, 1986, the circuit court held that evidence obtained as a result of an invalid search of defendant's home was erroneously admitted at defendant's bench trial. Because the evidence was improperly admitted, defendant was granted a new trial. From this order granting defendant a new trial, the State appeals.

The issue raised by the State on appeal is that the circuit court erred when it determined that a joint occupant's voluntary consent to a search, subsequent to a defendant's refusal to consent, is not a valid consent and renders the search invalid. Defendant, on appeal, also contends that the joint occupant's consent was not voluntary. The issue of whether a third party's consent coming after a defendant's prior refusal to consent to a search is vitiated by the refusal is one of first impression in Illinois.

The following facts were adduced at the hearing on defendant's motion to suppress. Officer Rohn Burke, a police officer for the City of Taylorville, testified that on May 7, 1986, at approximately 3 a.m., he investigated a burglary at Turner's Liquor Store. As a result of his investigation, he arrested three individuals. He was advised later that morning by Officer Randy Pettus that a co-defendant had stated that defendant was involved in the burglary. On the basis of this information, Officer Burke, accompanied by Officers Smith and Vatthauer, went to defendant's home.

When Officer Burke arrived at defendant's home, defendant's father, Wayne Mack Callaway, Jr., was outside on the porch of his residence. Officer Burke inquired of Mr. Callaway whether defendant was at home. Mr. Callaway informed him that defendant was inside in the living room asleep on the couch but that defendant had only returned home approximately an hour to an hour and a half earlier. After asking and receiving permission from defendant's father to enter the house so that he might speak with defendant, Officer Burke went inside.

Officer Burke approached defendant, asked him a few questions and then placed defendant under arrest for the burglary of Turner's Liquor Store. Officer Burke did not ask defendant if a search of the premises might be conducted but he was aware that defendant had stated that a search warrant was needed before a search was done. However, before Officer Burke transported defendant to the police station, Kenneth Griffiths, defendant's stepbrother, orally consented to a search, but a search of the residence was not made at that time. Defendant was present when Kenneth gave his consent to search.

Next, Officer Burke, accompanied by Officer Smith, conveyed defendant to the police station while Officer Vatthauer remained inside the house so that evidence could not be removed during Officer Burke's and Officer Smith's absence. Approximately 20 minutes later, Officer Burke and Officer Smith returned to defendant's home with a blank consent form. Kenneth Griffiths signed the consent form and the premises were searched. Officer Burke stated that he did not obtain permission to search from defendant's mother or father prior to this consent. As a result of the search, Officer Smith found cash in a pair of boots sitting underneath a hall tree located on the built-in back porch and Officer Burke found rolls of coins inside a Weber barbecue grill in the backyard.

Officer Smith's testimony corroborated Officer Burke's testimony. Additionally, he testified that prior to taking defendant to the police station, defendant was permitted to go into his bedroom to get dressed and Officer Smith accompanied defendant into the bedroom where Kevin Griffiths was sleeping. Defendant began to open a dresser drawer but Officer Smith stopped him and searched the drawer for weapons. When Officer Smith did this, defendant stated that a search warrant was required before a search could be conducted. Kevin Griffiths, who had awakened upon defendant's and the officer's entrance into the bedroom, reiterated defendant's statement that a search warrant was necessary. Officer Smith confirmed that Officer Burke asked Kenneth Griffiths if he would permit them to search the premises and Kenneth agreed to allow a search. Officer Smith was present when the other officers returned to defendant's home with a written consent form, and he witnessed Kenneth's signing of the form. He stated that the search was not conducted until after Kenneth signed the consent form.

Officer Vatthauer's testimony coincided with the testimony of Officer Burke and Officer Smith. He confirmed that he remained at defendant's home when the other two officers removed defendant to the police station. Further, he stated that both defendant and Kevin Griffiths informed the officers that a search warrant was needed before a search was conducted. He recalled that Kenneth Griffiths gave them oral permission to search, that Kenneth ...


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