Appeal from the Circuit Court of Du Page County. No. 91-CF-2325. Honorable Thomas E. Callum, Judge, Presiding.
Released for Publication May 27, 1994.
The opinion of the court was delivered by: Doyle
JUSTICE DOYLE delivered the opinion of the court:
Defendant, Marvin Steinberg, was found guilty in a jury trial in the circuit court of Du Page County of one count of controlled substance trafficking (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401.1 (now 720 ILCS 570/401.1 (West 1992))) and two counts of unlawful delivery of 15 grams or more but less than 100 grams of a substance containing cocaine (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(a)(2) (now 720 ILCS 570/1401(a)(2) (West 1992))). Defendant received concurrent sentences of 25 years' imprisonment on the trafficking count and 20 years' imprisonment on one count of unlawful delivery. Defendantsubsequently filed a timely appeal arguing that the trial court erred in denying his motion to suppress evidence recovered from a rented storage shed in Tennessee. The sole issue on appeal is whether defendant's wife, Shirley Steinberg, had authority to consent to the search of the rented storage shed.
That facts relevant to this appeal are as follows. Pursuant to an undercover investigation by the Du Page Metropolitan Enforcement Group (DuMEG) and defendant's arrest on the charges underlying the present case, DuMEG agents obtained information that defendant kept quantities of cocaine in rented storage sheds. On October 9, 1991, DuMEG agent Larry Wiess travelled to Tennessee and, along with other law enforcement personnel, interviewed Mrs. Steinberg. Mrs. Steinberg eventually gave written consent for the search of a rented storage shed. The police conducted a search of the shed and discovered quantities of cocaine and items of drug paraphernalia.
At the time of defendant's arrest, and the search of the storage shed, both he and his wife resided in Paris, Tennessee. The rented storage shed in question was located 15 to 20 miles away in Buchanan, Tennessee, and it was leased in defendant's name only.
At a hearing on the motion to suppress, Mrs. Steinberg testified that she had never been given a key to the facility. She stated further that she had been inside the shed on only one occasion, accompanied by her cousin and defendant, for the purpose of storing her daughters' winter clothing. According to Mrs. Steinberg, defendant had said that the stuff in the storage shed was his and that "nobody had any right to go in there."
Defendant testified that the storage shed was his, and his wife had only been to it one time to store some of his daughters' clothing. Defendant stated that he never gave his wife a key to the shed, and she did not have permission to enter the shed.
Agent Wiess testified that he met with Mrs. Steinberg at a police station in Tennessee on October 9, 1991. Wiess asked her if defendant had some cocaine in a storage shed in Paris, Tennessee. She admitted that he did and further stated that defendant had called her from jail, following his arrest on the present charges, and asked her to go to the shed and destroy the cocaine. Mrs. Steinberg said that she had not gone there because she was afraid to. Wiess testified that he asked Mrs. Steinberg for permission to go to the shed and recover the cocaine, and she said yes and subsequently signed a written consent form. According to Wiess, Mrs. Steinberg indicated that she had been to the shed previously to store personal belongings including a bed, some couch cushions, coolers, and personal income tax items. Wiess asked Mrs. Steinberg if she had a key to the shed. She saidthat if she had a key she had no idea where it would be. Instead, she gave the officers permission to cut off the lock. According to Wiess, Mrs. Steinberg told them that cocaine was located inside a cushion in the shed, and a subsequent search verified this information.
Agent Stephen Thomas Page of the 24th Judicial District Drug Task Force in Tennessee also participated in the October 9 interview with Mrs. Steinberg. Page testified that Mrs. Steinberg provided the correct number of the storage shed and written consent to search it. When asked about the shed's contents, she stated that some of the items inside were hers and some belonged to defendant. According to Page, Mrs. Steinberg did say that she had keys to the storage shed, but she did not know which one it was and said that they should go ahead and cut off the lock. Page also verified that the cocaine was recovered from inside a cushion found in the shed.
The trial court found that both Wiess and Page were credible witnesses, and, although there were some discrepancies in their testimony, there was not the type or degree of impeachment that would render their testimony incredible. The trial court indicated that it believed the version of events related by Wiess and Page over that of defendant and his wife. The court further found that consent had been voluntarily given and that Mrs. Steinberg had both actual and apparent authority to consent to the search of the storage shed. Defendant's motion to suppress was accordingly denied.
The sole issue raised by defendant on appeal is whether the trial court erred in finding that Mrs. Steinberg had authority, actual or apparent, to consent to the search of the storage shed. Both parties recognize that the law of the forum state, Illinois, controls in this case, despite the fact that the search occurred in Tennessee. See People v. DeMorrow (1974), 59 Ill. 2d 352, 354-55.
A reviewing court will not reverse a trial court's findings on a defendant's motion to quash and suppress unless it is determined to be clearly erroneous. ( People v. Henderson (1990), 142 Ill. 2d 258, 293, 154 Ill. Dec. 785, 568 N.E.2d 1234; People v. Janis (1990), 139 Ill. 2d 300, 308, 152 Ill. Dec. 100, 565 N.E.2d 633; People v. Foskey (1990), 136 Ill. 2d 66, 76, 143 Ill. Dec. 257, 554 N.E.2d 192.) The focus of the trial court's ruling was on the consent exception to the general prohibition against warrantless searches. A search of property, without a warrant and without probable cause, but with proper consent voluntarily given is valid under the fourth amendment. Illinois v. ...