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January 19, 1994


Appeal from the Circuit Court of Du Page County. No. 91-CF-2566. Honorable Peter J. Dockery, Judge, Presiding.

Released for Publication February 23, 1994. Petition for Leave to Appeal Denied June 2, 1994.

Colwell, Inglis, Quetsch

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Defendant, Christopher Bielawski, was charged with unlawful possession of cocaine, a controlled substance, with the intent to deliver (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(a)(2) (now 720 ILCS 570/401(a)(2)(West 1992))) and unlawful possession of cannabis with the intent to deliver (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 705(e) (now 720 ILCS 550/5(e) (West 1992))). The State appeals a trial court order granting in part defendant's motion to suppress certain evidence police seized, pursuant to a warrant, from defendant's apartment. The trial court found that the police made a valid initial entry but that the warrant was invalid because it was obtained as a result of an illegal second warrantless entry. The trial court suppressed all the evidence seized pursuant to the warrant except that which was in plain view during the valid initial search.

On appeal, the State argues that the trial court erred in invalidating the warrant and suppressing any of the evidence seized thereunder. The State argues that although the second entry was illegal, the warrant was valid under the "independent source" doctrine of Murray v. United States (1988), 487 U.S. 533, 101 L. Ed. 2d 472, 108 S. Ct. 2529. We agree with the State that the warrant had a valid and sufficient basis independent of the illegal second search. Therefore, we reverse and remand.

On October 30, 1991, pursuant to a sworn complaint by Westmont police officer Richard Musil, Judge Philip Equi issued a search warrant for defendant's apartment. Earlier that day, Officer Daniel Carlson made a warrantless entry into defendant's apartment. Upon leaving the apartment, Carlson told Musil that controlled substances were present in plain view in the apartment. Both officers entered the apartment to make confirmatory observations. After this second warrantless entry, Musil obtained the warrant and the police seized evidence described therein. Defendant moved to suppress this evidence, arguing that the warrant was invalid because it was the product of the allegedly illegal warrantless searches.

In the complaint for a warrant, Officer Musil stated that he had been a police officer for 15 years and a detective for 10 years and had participated in about 50 narcotics investigations. The information in the complaint was based on his own observations, on the observations of officers acting under his supervision, and on information provided by people that Musil had reason to believe were reliable. The complaint alleged the following facts.

At about 3:39 p.m. on October 30, 1991, Judy Sheridan telephoned the Westmont police department, stating that she was the property manager for the building in which defendant lived. She told the police that, earlier that day, maintenance employee Joe Polka observed that the door to defendant's apartment was open and that it appeared that someone had kicked in the door.

Officer Carlson was assigned to investigate the matter. Upon arriving at defendant's apartment, Carlson noticed that the apartment's front door was open; it was damaged and it appeared to have been kicked open. Carlson called for any occupants. As there was no response, Carlson entered the apartment to "check for occupants, and their safety." While he looked for any occupants, Carlson observed, in plain view, packages containing what appeared to be cannabis and a large clear plastic bag containing a white powdery substance that appeared to be cocaine. He also observed two scales and plastic packaging materials.

Carlson left the apartment and reported his observations to Musil. At 3:50 p.m., Musil and Carlson entered the apartment. Musil observed the same items that Carlson had observed on his initial examination. From his experience, Musil believed that defendant's apartment contained cannabis, cocaine, and scales and packaging materials that were suited to weighing and packaging cannabis and cocaine.

Officer Carlson was the sole witness at the hearing on defendant's motion to suppress. He testified that, between 3:30 p.m. and 3:40 p.m. on October 30, 1991, he went to defendant's apartment after the building's management had notified the police that the door was open, apparently from a forcible entry, and that loud music was coming from inside the apartment. Upon arriving, Carlson saw that the door was open about 8 to 10 inches. The door frame had been "broken out" and pieces of wood lay on the ground. Apparently the door had been forcibly opened. Carlson heard extremely loud music emanating from the apartment.

Carlson went to the door, looked through an opening, and, identifying his office, called into the apartment and asked if anyone was there. He received no response, although the loud music kept playing. Worried that there could be a dead or injured person inside, Carlson entered the apartment to check on the well-being of anyone who might be in the apartment.

Upon entering, Carlson went first to the living room. The loud music was coming from a radio. The furniture and some other items were in disarray. On a coffee table was a white paper plate with a substance that Carlson recognized from his training as cannabis. Carlson searched the room for people but found nobody else in the living room. He proceeded to the kitchen and the dining room. On the dining room table was a package that apparently had been ...

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