Appeal from the Circuit Court of Stark County. No. 90-CF-7. Honorable Robert A. Barnes, Judge, Presiding.
Released for Publication February 24, 1994.
Present - Honorable Kent Slater, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Tobias Barry, Justice
The opinion of the court was delivered by: Barry
JUSTICE BARRY delivered the opinion of the court.
Defendants were indicted and convicted on charges of (1) unlawful production of cannabis sativa plants, (2) unlawful possession of cannabis, (3) unlawful manufacture of cannabis, and (4) unlawful possession of cannabis with intent to deliver. The circuit court of Stark County sentenced defendant Wagers to 3 years in the department of corrections on all four counts and defendant Hatfield to 7 years on counts I, III and IV, but did not sentence him on his count II conviction for unlawful possession of cannabis. Defendants appeal contending that the trial court erred by denying the defendants' "Motions to Quash Search Warrant and Suppress Evidence." The defendants also contend that the trial court improperly entered multiple judgments on the cannabis charges.
On September 18, 1990, Special Agent Robert Yedinak of the Illinois State Police filed a written complaint for a search warrant to search:
"a two story white house, a trailer, storage sheds and out buildings and garden and vegetation area and persons living or found on said premises located at: R.R. # 2, Toulon, Stark County, Illinois, and the North edge of the unincorporated Village of Elmira and on the east edge of Elmira Road (County Road 800E) and approximately 1/2-3/4ths miles North of Illinois Route 93."
The complaint sought seizure of a number of things including cannabis sativa plants and cannabis. The complaint claimed that probable cause existed to believe that these things existed on the stated premises based on facts set forth in the attached affidavit.
The attached affidavit of Agent Yedinak stated that through a conversation with Stark County Sheriff, Lonnie Dennison, Agent Yedinak learned that several individuals from the same area of Kentucky had recently purchased 3 tracts of land in Stark County and had moved into the area. The individuals had asked to pay cash for the property and "to keep the payments below $10,000 in order to avoid disclosure and reporting to the government." The conversation revealed that the individuals purchased the land with cash payments each less than $10,000, which was confirmed through the Stark County records and an interview of the real estate agent who was involved. The affidavit named the "individuals involved" as Homer Curry, Ernie W. Hatfield, Eddie Burnette, Charles Hoskins and Sterling McDonald and stated that all the individuals had arrest records involving illegal use of cannabis.
The affidavit then stated Agent Yedinak's personal observations of the property including seeing "approximately 25 leafy, green plants which appear to be three to five feet tall, growing inside a large patch of weeds." These plants were in a cultivated area approximately 40 feet from the trailer behind an equipment shed. The affidavit stated that it was because of Agent Yedinak's experience and training that he knew they were cannabis plants.
The affidavit next stated that the Stark County Records and conversations with real estate agents reveal that "the property is owned by Homer Curry, Ernie W. Hatfield, and Sterling McDonald." Also, "[a] check of the motor vehicle and driving records reveal [sic] that Hatfield and McDonald list the house and trailer as their respective residences." The legal description of the property was set forth as "the North side of lot 13 and located in the Southeast Quarter (S.E. 1/4) of Section 20 of the Village of Elmira, Elmira Township, Stark County, Illinois."
Finally, the affidavit stated that through conversations with agents of the Missouri State Police, Agent Yedinak learned that Missouri officials had observed approximately 8 to 10 thousand marijuana plants being grown on property belonging to Ernie Hatfield; and that Ernie Hatfield, Sterling McDonald and Charles Hoskins had been arrested on possession of marijuana and related charges. Agent Yedinak had also received information that a person matching the description of the defendant, Ernie Hatfield, had purchased potting soils and planting trays at a local nursery.
According to the record, on September 14, 1990, the officers searched two separate properties. The property on which the trailer stood was owned by Sterling McDonald and the property on which the white house and garage stood was owned by defendant Hatfield. Upon execution of the search warrant, officers found defendant, Catherine Wagers, in the white house. Officers also found a vehicle registered in defendant Hatfield's name parked on the trailer property. In the white house and garage officers found, among other things, a marijuana growers guide in a downstairs bedroom of the white house, 57 marijuana plants hanging in the garage and a canvas tarp containing marijuana also was discovered in the garage.
On December 2, 1991, the defendants filed a "Motion to Quash Search Warrant and Suppress Evidence." The defendants sought to suppress the evidence found in the white house and garage. The trial court denied the defendants' motion. At trial, the defendants objected to the introduction of any of the items seized from the white house and garage, ...