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12/14/94 PEOPLE STATE ILLINOIS v. JOHN ERVIN

December 14, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE
v.
JOHN ERVIN, DEFENDANT-APPELLANT



Appeal from the Circuit Court of Cook County. Honorable Dennis Porter, Judge Presiding.

The Honorable Justice Greiman delivered the opinion of the court: Rizzi, J., and Cerda, J., concur.

The opinion of the court was delivered by: Greiman

The Honorable Justice GREIMAN delivered the opinion of the court:

Following a warrantless entry by the police into defendant John Ervin's former wife's home, he was arrested and charged with possession of cannabis with intent to deliver. The trial court denied defendant's motion to suppress the evidence based on his lack of standing to challenge the warrantless search and seizure by the police. Thereafter defendant was convicted of the charged offense.

On appeal, defendant asserts that he had standing to contest the warrantless police actions and that no exception to the warrant requirement justified the search and seizure.

We find that defendant lacked standing to contest the warrantless search and seizure conducted in the home of his former wife and affirm the denial of defendant's motion to suppress evidence. Absent appropriate standing on the part of defendant, we need not and do not address the second issue regarding the justification of the warrantless search and seizure as an exception to the warrant requirement.

The testimony presented at the evidentiary hearing on defendant's motion to suppress was the sole evidence used in his subsequent stipulated bench trial. Chicago Housing Authority Police Officers Melvin Jones and Thomas Wiggins testified to the circumstances of defendant's arrest.

Officer Jones testified that on April 4, 1993, he and his partner Officer Wiggins were working in uniform at the Altgeld Gardens project. While in their car, an unidentified citizen approached Jones and Wiggins and informed the officers that possible narcotic sales were taking place at a certain address (1105 East 130th Place). After positioning themselves across a field about 150 feet away from the home, the police observed seven to eight people over a 15-minute period of time go to the front door, stand for one to two minutes and leave. Jones testified that the someone in the house would come to the door, greet the people and engage in a transaction. The visitors were not allowed entry into the residence. Jones did not observe anything being exchanged.

Following this surveillance, Jones, his partner Wiggins and four other police officers went to the apartment. When Jones was about three to five feet from the door, a woman exited the screen door and stated "Oh, shit. I know why you are here." While the woman held the screen door open, Jones saw defendant about seven to eight feet away sitting alone at the kitchen table and "putting a green leafy substance into a very small manila bag." Jones also noticed a quantity of small envelopes on the table and a large silver pan on the kitchen table although from the door he could not identify the contents of the pan.

Jones had been a police officer for 1 1/2 years and made at least 12 prior narcotic arrests. On several prior narcotic arrests, he had seen green leafy substance which he suspected to be cannabis. Based on his experience, Jones had seen cannabis in small manila envelopes "all the time." When Jones saw defendant place the green leafy substance in a bag, Jones decided to approach and testified that the purpose of entering the apartment was to ascertain the nature of the green leafy substance.

The police entered the apartment without a warrant, Jones secured the front room which was occupied by four people and Wiggins proceeded to the kitchen area. When the police entered the apartment, defendant placed the silver pan on his lap and Wiggins asked defendant to put the pan back on top of the table. The silver pan contained cannabis.

Officer Thomas Wiggins essentially testified to the same events as recounted by his partner Jones except that Wiggins recalled seeing the visitors enter the apartment during the surveillance while Jones had stated that the visitors had not entered.

Wiggins further testified that the front entrance had two doors: an outside screen door and an interior wooden door. When he and Jones approached the apartment and encountered a woman leaving the apartment, the inside wooden door was left open. When the woman released the screen door, Wiggins "had one foot up on the small step" and had to catch the door with his hand to prevent it from hitting him.

From the doorway, Wiggins observed defendant sitting at the kitchen table approximately 15 feet away, retrieving plant-like material from a silver tray on the kitchen table and placing it in a brown, small envelope. Wiggins also saw a scale sitting on the table and several small paper packets but could not see the contents of the silver pan. After entering the apartment, Wiggins approached defendant, observed defendant ...


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