Appeal from the Circuit Court of Lake County. No. 91-CF-2109. Honorable Peter M. Trobe, Judge, Presiding.
Woodward, Quetsch, PECCARELLI
The opinion of the court was delivered by: Woodward
JUSTICE WOODWARD delivered the opinion of the court:
The State appeals from the order of the circuit court which granted the motion of defendant, Tommy Riddle, to suppress evidence seized pursuant to a search warrant. In challenging the court's ruling, the State raises two issues: (1) whether the police officers executing the warrant "knocked and announced" before battering in defendant's door; and (2) whether the presence of "pit bull" dogs at defendant's residence created exigent circumstances authorizing a "no-knock" entry.
Defendant was indicted for armed violence (Ill. Rev. Stat. 1991, ch. 38, par. 33A-2 (now 720 ILCS 5/33A-2 (West 1992))), the unlawful possession of a substance containing cocaine (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1402(a)(2)(A) (now 720 ILCS 570/402(a)(2)(A) (West 1992))), the unlawful possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(a)(2)(A) (now 720 ILCS 570/401(a)(2)(A) (West 1992))), the unlawful possession of cannabis with the intent to deliver (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 705(d) (now 720 ILCS 550/5(d) (West 1992))), and the unlawful possession of cannabis (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 704(d) (now 720 ILCS 550/4(d) (West 1992))). The charges were based on evidence seized from defendant's home during the execution of a search warrant. Defendant moved to suppress the evidence on the basis that the police officers used excessive force in executing the warrant.
Steve Engelhard, a friend of defendant's son, testified that he went to defendant's home around 4 p.m. on October 4, 1991, to visit defendant's son. Engelhard sat and watched TV while waiting for defendant's son to come home. Engelhard got up to change the channel of the TV and was five to six feet from the front door, when the door was knocked down and the police SWAT team came in. He did not hear anyone knock or announce the police presence before the door was broken in.
Officer Eric Lundahl testified that he was a team leader with the Northern Illinois Police Alarm System (NIPAS), a SWAT team. About a week before October 4, 1991, Metropolitan Enforcement Group (MEG) agents Budny and Agos advised Lundahl that they might need the services of NIPAS in executing a search warrant for defendant's home. The MEG agents told Lundahl that they were concerned about safety as they had information that defendant carried a handgun, weapons would be inside the residence, and there were "pit bulls" on the property. Lundahl was told that there were at least four, and as many as nine, dogs.
Lundahl further testified that the day of the execution of the search warrant, the NIPAS team met with the MEG agents to plan the entrance. The NIPAS team brought a CO fire extinguisher to deal with the dogs. The plan was for Donald Hohs to open the screen door of the house. James Kuzynowski was to knock and announce. If there was no response, Kuzynowski would use a battering ram to break in the door.
The NIPAS team arrived in a van. The van was parked so that it was hidden from view from the house. The 10 NIPAS agents left the van and ran towards the house. Lundahl was the fifth person out of the van. He did not recall hearing anyone announce the police presence until the door was already being battered or had been broken in and the officers were entering the house. Lundahl noticed that there were two "pit bulls" in a dog run outside the house. There were no dogs inside the house.
Officer Jeffrey Schirmbeck, of NIPAS, testified that he was the fourth person out of the van. As he was getting to the porch, the door was being broken down. Kuzynowski said "police, search warrant," and then Schirmbeck heard Kuzynowski hit the door with the battering ram. Schirmbeck stated that he did not hear anyone knock on the door before Kuzynowski hit it with the battering ram.
James Kuzynowski testified that he was the second person out of the van. Hohs opened the screen door,' and Kuzynowski knocked and announced "police, search warrant." Kuzynowski paused for a couple of seconds and then hit the door with the battering ram.
Officer Thomas Armstrong, of MEG, testified that he was in an undercover vehicle driven by Agent Budny. The car was parked a quarter mile from defendant's house, across Green Bay Road. Armstrong was watching the street with binoculars. Although it was dusk and it was raining, Armstrong saw the SWAT team arrive. Armstrong stated that he saw "an attempt to knock" or "what appeared to be a knock." He also heard a muffled yell. Nearly all of the 10 NIPAS officers were on the porch at that time. Armstrong did not recall seeing a battering ram or hearing the door being struck. He estimated that 15 to 20 seconds elapsed from the time the first person knocked on the door until the door was opened.
Agent Brian Budny of MEG testified that he could not see the front porch of defendant's house from where he and Armstrong were parked. Budny was driving the car as the NIPAS van pulled up. As Budny was crossing Green Bay Road, the NIPAS team was approaching the house, and after Budny crossed the road, he saw the team entering the house. He never saw the team members on the porch. When Budny pulled up, Agent Agos was standing in the driveway, and the NIPAS team members were already in the house. Budny stated that he had no information about "pit bulls," except what Agos told him.
Agent Thomas Agos testified that he was the primary investigator for the case. Agos saw the entry team running towards the front door. According to Agos, there were five or six NIPAS agents. Agos testified that the screen door was opened, and he heard one officer yell "police, search warrant." That officer waited three to five seconds and then battered in the door. Agos was ...