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06/22/89 the People of the State of v. James Speer Et Al.

June 22, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

JAMES SPEER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

540 N.E.2d 1089, 184 Ill. App. 3d 730, 133 Ill. Dec. 223 1989.IL.974

Appeal from the Circuit Court of Lake County; the Hon. Harry D. Hartel, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. McLAREN and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendants, James Speer and Christopher Kucharski, were charged with unlawful possession of less than 15 grams of a controlled substance (cocaine); unlawful possession with intent to deliver more than 5 but less than 15 grams of a substance containing cocaine; unlawful possession of more than 30 but less than 500 grams of cannabis; unlawful possession with intent to deliver more than 30 but less than 500 grams of cannabis; unlawful possession of less than 15 grams of a controlled substance containing lysergic acid diethylamide; unlawful possession of less than 15 grams of a controlled substance containing diazepam; and possession of a firearm without a firearm owner's identification card.

These charges were brought as a result of evidence seized by the police after a warrantless search of defendants' apartment. Defendants moved to suppress the evidence, and after a suppression hearing, this motion was granted. The State's motion to reconsider was denied. The State filed a certificate of impairment pursuant to People v. Young (1980), 82 Ill. 2d 234, 247, to allow an appeal under Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)), and now raises three issues on appeal: (1) whether the warrantless search of the apartment was permissible under an emergency exception to the warrant requirement where police reasonably believed a woman in the apartment was suffering from a drug overdose; (2) whether the warrantles search was permissible due to consent by one with apparent authority; and (3) whether the warrantless search was permissible under a theory of ratified authority where a resident of the apartment consented after an unauthorized person gave consent. For the reasons stated below, we reverse.

The following evidence was introduced at the suppression hearing. Becky Kuzmickus testified as follows: On June 16, 1987, she received a phone call from the mother of Denise Lopez, who told her that Denise had called and asked her to call Kuzmickus to tell her that her daughter, Nina Sanchez, was overdosed on narcotics. Kuzmickus said she was alarmed by this call. She went to Denise Lopez's home to meet Denise, who was going to take her to Nina. When Kuzmickus arrived at Denise's, Denise was not there. Denise's boyfriend was there and told Kuzmickus where she could find Nina. At this point Kuzmickus called police detective Marty Grum on his pager. (Kuzmickus was acquainted with Detective Grum, and he had given her his pager number in case she ever needed his assistance.) Kuzmickus stated she called Detective Grum because she was afraid to go to the residence alone. Kuzmickus told him she thought her daughter was in serious condition. Detective Grum told her that because he was off duty he would have to call a uniformed officer for assistance. He also told her that since Nina was 20, if she did not want to leave the premises, he could not force her. He told Kuzmickus he would accompany her to make sure nothing happened to her. He told her to meet him at a street corner, and they would go to the residence.

Kuzmickus, along with her husband, met Detective Grum on a street corner at Tenth and Jackson and proceeded to 920 South Jackson, the address at which Kuzmickus was told Nina was overdosed. The three were also accompanied by a Waukegan police officer. When they arrived at the residence, one of the officers knocked on the door, and a man answered. The officer asked if Nina Sanchez was inside, and the man replied no, he had dropped her off in Grayslake. Kuzmickus testified that Nina's car was out back behind the residence. An officer asked if they could come inside. The man said fine and let them in. Upon entering the apartment, the officers asked who owned the apartment and asked again if they could look around. Defendant Speer replied yes. Kuzmickus and her husband looked through the different rooms in the apartment, but did not find Nina.

Detective Marty Grum testified as follows: He received a call at about 10 a.m. from Kuzmickus, who told him she had been informed that her daughter was unconscious due to an excessive amount of narcotics, and she was lying in only her underwear on the floor of an apartment where there were several men. She told him she believed her daughter's safety was in jeopardy. Grum told her to determine the exact location where she believed her daughter was located. He was not certain whether the location was in Waukegan or North Chicago. He called the North Chicago police department to tell them he might need its assistance. Grum also called the Waukegan police department, who dispatched Officer Paul Hansen to the corner where Grum was to meet Kuzmickus. At the corner, Detective Grum explained to Officer Hansen what Kuzmickus had told him, and they proceeded to the residence. They arrived at the residence at approximately 11 a.m.

At the residence, Officer Hansen knocked on the door, and David Sanchez opened it about 90 degrees. Detective Grum could not see any drugs or drug paraphernalia from this vantage point. Officer Hansen asked Sanchez if Nina was in the apartment. He said she was not. Then Officer Hansen asked Sanchez if he lived in the apartment, and Sanchez responded that he did. Sanchez said they could enter, and they stepped inside. From inside the doorway in the living room, Detective Grum could see into the kitchen, where he saw a glass pipe with white residue. Officer Hansen then asked if anyone else lived in the apartment. Sanchez said that defendant Speer lived in the apartment. Detective Grum asked Speer if they could look for Nina, and he said go ahead. Detective Grum walked through the apartment with Kuzmickus behind him and looked into each room for Nina. He observed two rifles, a shotgun, and a handgun in a bedroom. In the kitchen he observed another glass pipe, a pair of forceps, and a mirror with white residue on it. He also saw a white powder on top of the kitchen cabinet and a bag with a green leafy substance in the bottom cabinet, which was partly open. After making these observations, Detective Grum returned to the living room and informed Officer Hansen, who called for assistance.

Officer Paul Hansen testified as follows: He was dispatched to meet Detective Grum at the corner of Tenth and Jackson. The dispatcher did not tell him that he was to investigate a possible overdose. He learned about the possible overdose when he met Detective Grum and Ms. Kuzmickus and her husband at Tenth and Jackson. Detective Grum and Nina's parents indicated that Nina could be in danger. The parents were distraught and concerned. The four proceeded to 920 South Jackson, and, after a knock on the door, David Sanchez answered. Detective Grum asked him if Nina was inside. He told Sanchez he had been told that Nina was passed out on the floor in her underwear intoxicated from drugs, and they were concerned about her well-being. Sanchez told him he had taken her home to Grayslake. At this point Officer Hansen still believed Nina could be in the residence in distress. He asked Sanchez if he lived in the apartment and if they could come inside. Sanchez answered yes to both questions. Officer Hansen and Detective Grum entered the apartment. Officer Hansen saw defendant Speer lying on the couch in the living room and asked him if he lived in the apartment. Speer told him he did and gave him permission to look around. Officer Hansen and Detective Grum looked around the apartment for Nina and did not find her. Detective Grum pointed to some drug items on the kitchen table. Officer Hansen observed the items and called for assistance.

David Sanchez testified as follows: He answered the door to defendants' apartment and was asked by a police officer if Nina was inside. He stated that she was not, that he just took her home. An officer asked permission to come inside, and he turned around to wake up defendant Speer. At this point the police came inside. He had not told the police that they could enter. After they came through the door they began talking to defendant Speer. Sanchez said he never lived in this apartment.

Defendant Speer testified as follows: He was sleeping on the living room couch when he was awakened by a uniformed police officer and Nina's mother and father walking past the couch. He asked what was going on. He said they began looking through the apartment, and at some point an officer stated that they were looking for Nina. Detective Grum stood inside the doorway. Detective Grum recognized Denise Lopez, who was sitting on a chair in the living room and made some greeting to her. Speer said no one asked him for permission to search his house, but he did ...


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