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August 10, 1994


Appeal from the Circuit Court of Du Page County. No. 92-CF-2306. Honorable Eugene A. Wojcik, Judge, Presiding.

Released for Publication September 13, 1994.

Quetsch, McLAREN, Doyle

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

After a bench trial with stipulated evidence, defendant, Regan W. Graf, was convicted of the unlawful possession of more than 500 grams 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 trial court sentenced defendant to 90 days' incarceration in the county jail and 30 months' probation and imposed a $1,000 mandatory statutory assessment. On appeal, defendant contends that, at the hearing on defendant's motion to suppress evidence, the trial court erred in granting the State's motion for a directed finding. The issue here is whether defendant failed to make a prima facie showing that he and his parents did not voluntarily consent to a search of their home.

Defendant's father, Ron Graf, testified that he lives with his wife and children in a home in Downers Grove. Defendant lives in the basement of the home. At about 9:30 p.m. on October 13, 1992, Ron was in bed. As he was about to fall asleep, he heard someone knocking loudly at the front door of the house and went downstairs. As he was walking towards the front door, he heard someone banging on one of the side doors and also the back door. Ron then went out onto the enclosed back porch and saw someone dressed in black racing across the deck in the backyard.

Ron opened the door leading from the back porch to the backyard, turned on the porch lights, and saw a uniformed police officer. The officer asked Ron if defendant was home, and Ron said that he would go get him. The officer then asked Ron where defendant was andstarted walking into the porch area with Ron. Ron started to close the door and told the officer that he would be back as soon as he found defendant. The officer tried to walk into the porch area. Ron said "whoa," and tried to pull the door shut. The officer attempted to pull the door open, and Ron said, "Wait a minute. I'll go downstairs and see if he is down there."

The officer said that something "big" occurred that involved a lot of money. Ron indicated that he did not know what the officer was talking about. When the officer asked if defendant was home, Ron said, "I told you, I don't know."

Ron testified that a second officer appeared. They both pushed the screen door open and stood in the doorway. Ron said that he would go get defendant. The officers replied that they could not let Ron go downstairs and tried to enter the porch. Ron attempted to resist them by raising his hands. He said, "Whoa. There is the line, gentlemen. That threshold is my house. No one is allowed in there. Do you have a search warrant?"

When the officers replied that they did not have a warrant, defendant told them to go get one. The officers said they would if they had to, and Ron told them that they did have to get a warrant. Ron said that he did not know what the officers wanted and again offered to get defendant and bring him to the door.

The officers started to walk into the porch area. Ron tried to use his body to block the first officer. The second officer "scooted" by Ron and entered the porch. The first officer managed to force his way into the porch area. Ron instructed the officers to remain on the porch. The second officer ran through the kitchen and started to make his way upstairs. Ron yelled for the officer to come back to the kitchen and stated that his father-in-law was sick and easily upset.

The officer complied and returned to the kitchen. Ron's wife, Rosemary, emerged from the basement. Ron instructed her to get defendant. As she started to go down the stairs, the second officer followed her down the stairs. Ron said, "Dammit, I warned you guys. Get the hell out of here."

The second officer stood with Rosemary at the bottom of the stairs while she called to defendant. By the time they emerged from the basement with defendant, there were two other police officers in the house. Ron did not see these two officers enter. The officers confronted defendant, claiming that defendant participated in a controlled drug purchase and had the money from the transaction. At this point, Ron instructed defendant and the officers to get out of the house and discuss this matter outside. Defendant and the officers went out on the porch and conversed for about an hour. The officers came inside, and they and Ron sat at the kitchen table and conversed further. At one point, Ron offered the officers coffee.

Ron testified that he signed a consent to search form that gave the officers permission to search the basement. The officers told him that, if he did not sign the document, he would be up all night until they got the search warrant. Ron testified that he signed the form to get the officers to leave his ...

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