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12/04/89 the People of the State of v. Charles F. Bessler

December 4, 1989





548 N.E.2d 52, 191 Ill. App. 3d 374, 138 Ill. Dec. 822 1989.IL.1871

Appeal from the Circuit Court of Du Page County; the Hon. Robert A. Nolan, Judge, presiding.


JUSTICE REINHARD delivered the opinion of the court. McLAREN, J., concurs. JUSTICE INGLIS, Dissenting.


Following a stipulated bench trial in the circuit court of Du Page County, defendant, Charles F. Bessler, was found guilty of the offenses of unlawful use of weapons (Ill. Rev. Stat. 1987, ch. 38, par. 24-1(a)(7)), possession of a firearm without having a firearm owner's identification card (Ill. Rev. Stat. 1987, ch. 38, par. 83-2), and unlawful possession of not more than 2.5 grams of a substance containing cannabis (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 704(a)) and was sentenced to an 18-month term of periodic imprisonment, a $250 fine, and a $100 fine on the convictions, respectively.

Defendant appeals, contending that his pretrial motion to suppress evidence should have been granted because the search of his garage pursuant to a search warrant was based on an earlier unlawful warrantless administrative search of the premises.

Defendant's motion to suppress evidence alleges that on March 24, 1987, police officers entered a garage at 310 East Elm, Villa Park, Illinois, pursuant to a search warrant, and shortly thereafter arrested and charged him with unlawful use of weapons, possession of a firearm without having a FOID card, and unlawful possession of cannabis. Defendant's motion further states that the search warrant was obtained through false and misleading allegations. In an amendment to the motion to suppress, defendant also alleges that the "predicate search which was the basis for the search warrant was illegal" because there was no authority for the police and a housing inspector to go upon the property and look into the garage.

At the hearing on the motion to suppress, the testimony shows that defendant lived with his parents at 310 East Elm in Villa Park and rented from them the detached garage to the rear of the residence. The garage is approximately 10 to 15 feet behind the house. Defendant uses the garage to work on cars and store tools. On March 24, 1987, the garage door was secured by a padlock and chain and the one window was boarded up. No one could see inside according to defendant.

On the morning of March 24, 1987, at about 10:45, David Jones, a property maintenance and housing inspector for the Village of Villa Park, and Officer Robert Budig of the village police department went to 310 East Elm. According to Jones, the village's building department previously received a telephone call from a neighbor complaining that five or six males were seen going in and out of the garage at 310 East Elm. The caller suggested that someone might be living in the garage. If true, according to Jones, this would allegedly constitute a violation of a Villa Park ordinance. Jones decided to investigate the report, and he requested that the Villa Park police department send an officer to accompany him. Jones stated that it is common for building inspectors to request a police officer to accompany them on certain inspections if going alone would make the inspector uncomfortable. Budig and Jones testified that the purpose of the visit was to determine whether anyone was, in fact, living in the garage.

The two knocked at the door of the house but received no answer. They then went behind the house to inspect the garage to determine if someone was living there. Jones believed he could enter onto the property and search the exterior of the premises for purposes of enforcing code violations. He based this assumption on a village ordinance which allowed certain village officials to enter structures or premises for the purpose of making inspections. They attempted to look into the window of the garage, but were unable to do so because the window was covered. They testified, however, that the pedestrian door, though chained and padlocked, could be opened about two to three inches. They attempted to peer into this small opening, but apparently Officer Budig's flashlight was not powerful enough to sufficiently illuminate the inside of the dark garage.

Leaving Jones at the garage, Officer Budig then drove to the police station to retrieve a more powerful flashlight. When Budig returned, he and Jones tried again to look into the garage. Budig stated that he saw on a table in the garage a mound of white, powdery substance on a piece of glass which appeared to be cocaine. He said that next to the white powder were two chunks of another substance he believed was "crack" cocaine. He also observed a glass water pipe and a scale. Officer Budig later swore to these facts in an affidavit, and a warrant to search the premises was subsequently issued based on this information.

A search of the garage was conducted at 6:20 p.m. that day according to the search warrant inventory form. The search produced, inter alia, a .20 gauge shotgun with a barrel less than 18 inches in length, less than 2.5 grams of a green, leafy substance later determined to be cannabis, and drug paraphernalia.

Defendant testified that he returned to the garage sometime early in the afternoon of March 24, 1987, and found the condition of the garage to be different from the way he had left it. According to the defendant, the material covering the garage window was pulled away and the window broken so that light could enter the garage. At 7 p.m. that day defendant ...

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