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June 15, 1994


Appeal from the Circuit Court of Fayette County. No. 89-CF-60. Honorable Richard H. Brummer, Judge Presiding.

Welch, Chapman, Rarick

The opinion of the court was delivered by: Welch

JUSTICE WELCH delivered the opinion of the court:

Reggie Harre (defendant) appeals from an order of the circuit court of Fayette County denying his petition for post-conviction relief.

At approximately 8:00 p.m. on September 12, 1989, Officer Larry Coughlin, Sergeant Stephen Poe, and Agent Frederick Bray, all officers with the Illinois State Police, entered onto a rural Fayette County tract of land improved with a house. This property was later determined to be owned by Nell Rinehart. Based on information received by Officer Coughlin that a number of windows had recently been boarded up and that a strong odor was coming from the house, the three officers decided to investigate. Officer Coughlin approached the house from the east, looked through a window, and observed two people sitting at a table doing something with their hands. Sergeant Poe walked along the north side of the house and was able to see through a window two people he knew to be Joe and Diane Radcliff, processing marijuana plants.

Based on the information they had gathered, Officer Coughlin left and obtained a warrant while Sergeant Poe stayed at the house. After returning with a warrant and more officers, the house was searched and the Radcliffs were arrested. The officers seized approximately 70 pounds of cannabis from the house. Additionally, Officer Coughlin observed food, a portable television set, a table, a couch, some chairs, and some clothes in the house. Electricity was also working in the house. Once the Radcliffs were placed under arrest and read their rights, Joe Radcliff informed the officers that they did not control the house, but that Charles and Reggie Harre did, and that the Harres were expected back later that night.

Sometime in the early morning of September 13, 1989, Charles and Reggie Harre drove onto the property, pulled into a parking area, and parked next to the house. To get onto the property by car, the Harres had to open and pass through a gate which was located approximately one-third to one-half the way up the private road leading to the house. When Officer Coughlin first saw the car, Charles was sitting on the front fender of the car and defendant was driving. While Sergeant Poe was apprehending Charles, Officer Coughlin approached the car and ordered the driver, whom he recognized, to get out of the car. As defendant exited the car, Officer Coughlin sawa handgun and a rifle on the front bench seat of the car. The next morning, after obtaining a warrant to search defendant's car, the police seized from the car the two weapons, one white plastic bag containing cannabis, and two trash bags containing cannabis.

On September 15, 1989, defendant was charged in an amended information with one count of armed violence and one count of unlawful possession of cannabis with the intent to deliver. The armed violence count alleged that defendant committed the felony offense of unlawful possession while armed with a rifle and a handgun. The unlawful possession count alleged that defendant possessed with the intent to deliver more than 500 grams of a substance containing cannabis.

On December 21, 1989, defendant filed a motion to quash arrest and search warrant and to suppress illegally seized evidence. Defendant alleged that: (1) the police officers surreptitiously entered the property, without a warrant or permission from the owner or her real estate agent, to determine if criminal activity was taking place; (2) his arrest resulted from the officers obtaining and executing a search warrant on the basis of their observations at the time of their invasion onto the property; (3) he entered the Rinehart property with the permission of Charles Harre, who had transacted the purchase of the property; (4) he had a reasonable expectation of privacy on said premises; and (5) the State's invasion of his privacy constituted "a violation of [his] right against unreasonable search and seizures guaranteed under the Sixth Amendment [sic ] and the U.S. Constitution."

On January 22, 1990, defendant's motion was heard. Following testimony from Officer Coughlin and Sergeant Poe, Nell Rinehart testified, inter alia, that: (1) she owned the property where the events of September 12-13, 1989, occurred; (2) she had not lived on the property since early 1986; (3) sometime in July 1989 she decided to sell the property; (4) at the end of August 1989, right around Labor Day, she received a call from Dale Bernhardt (her real estate agent with whom the property was listed) informing her that an offer had been made; (5) right after Labor Day, she accepted the offer and signed a contract for sale of the property; (6) according to the contract, the buyer was to take possession on October 1, 1989; (7) she dealt solely with her real estate agent concerning the sale; (8) she had never met nor talked to the contract purchaser (i.e., Charline Jett/P & M Consulting Company); (9) she had never met the defendant; and (10) she had never given anyone permission to go onto the property other than for the purpose of viewing it for sale.

The defendant testified, inter alia, that: (1) he was aware that theproperty on which he and Charles were arrested was in the process of being sold to Charline Jett and the P & M Consulting Company; (2) he never spoke to Nell Rinehart or Dale Bernhardt; (3) he was verbally asked by Charles, on behalf of Charline Jett, to prepare the property for occupancy; (4) although he was unaware of the details of the real estate sales contract, he thought he had the right to be on the property; (5) he entered the property and started cleaning it up (i.e., mowing the grass, clearing the area of tree limbs, and cutting down a tree) in early September; and (6) he boarded up the windows because he was storing some tools inside the house.

After defendant rested, the State moved for a directed finding that defendant lacked standing to challenge the initial warrantless entry onto the Rinehart property which ultimately led to his arrest. The State argued that defendant lacked standing to contest the search because neither the contract purchaser nor defendant was entitled to be on the property prior to October 1, 1989, and thus, defendant had no reasonable expectation of privacy in the premises. At the Conclusion of the hearing, the trial court granted a directed finding in favor of the State and denied defendant's motion.

On February 13, 14, and 15, 1990, the case went to jury trial. For purposes of this post-conviction appeal, we need not chronicle the evidence adduced at trial. We note only the testimony of Don Bernhardt, the real estate agent. He testified that he: (1) had not given defendant permission to enter the property in advance of the closing date and (2) had told Charles that he could enter the property, but only for the purpose of cleaning it up.

The jury returned a verdict of guilty on both counts. On March 23, 1990, after the trial court denied his motion for a new trial, defendant was sentenced to an eight-year term of imprisonment and fined $5,000. Defendant appealed. The sole issue on direct appeal was whether defendant was entitled to a $960 credit against his fine pursuant to section 110-14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 110-14), because he spent 192 days in jail from the time of arrest through sentencing. On May 20, 1991, this court, in an order entered pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23), affirmed defendant's conviction but modified his ...

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