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12/15/94 PEOPLE STATE ILLINOIS v. ORLANDO ALVARADO

December 15, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
ORLANDO ALVARADO, DEFENDANT-APPELLEE.



Appeal from Circuit Court of McLean County. No. 93CF910. Honorable William T. Caisley, Judge Presiding.

As Corrected February 1, 1995.

Honorable James A. Knecht, P.j., Honorable Frederick S. Green, J., Honorable Robert J. Steigmann, J., Concurring, Presiding Justice Knecht delivered the opinion of the court: Green and Steigmann, JJ., concur.

The opinion of the court was delivered by: Knecht

PRESIDING JUSTICE KNECHT delivered the opinion of the court:

The circuit court of McLean County granted defendant Orlando Alvarado's motion to suppress evidence seized from his motel room, finding his consent to search was invalid. The State appeals, and we reverse.

I. FACTS

Defendant was arrested and consented to a search of his motel room, where a large amount of cannabis was seized. He was indicted with unlawful possession of cannabis, unlawful possession of cannabis with intent to deliver, and cannabis trafficking, in violation of sections 4, 5, and 5.1 of the Cannabis Control Act (720 ILCS 550/4, 5, 5.1 (West 1992)). Prior to trial, defendant filed a motion to suppress the evidence, alleging his consent for the search had not been "knowing and voluntary." At the suppression hearing, only the arresting officer and defendant testified. There was no significant conflict in their testimony, and the State presented no further evidence or testimony. The trial court issued a ruling from the bench, and later entered a written order. Because neither party disputes the factual findings of the trial court, the facts as found in the written order are presented in their entirety:

"FINDINGS OF FACT

On October 23, 1993, the defendant Orlando L. Alvarado registered as a guest at the Fairfield Inn located at 202 Landmark Drive in the Town of Normal, in the County of McLean, in the State of Illinois. He was assigned to Room 349. Late in the morning hours of October 24, 1994, a motel maid was performing routine housekeeping duties. She observed no 'Do Not Disturb' sign on the door knob of Room 349. She opened the door and observed that the defendant was not present in the room. She also observed a green leafy substance all over the bed. Apparently believing the substance to be marijuana, she became apprehensive and immediately closed the door. She contacted the motel manager, who promptly called the Normal Police Department.

Officer Martin L. Fogler responded to the Fairfield Inn and conferred briefly outside of Room 349 with the maid and the motel manager. The motel manager then opened the door. As soon as the door was opened a small crack, a strong odor emanated from the room. Officer Fogler identified the odor as that of marijuana. Without entering the room, Fogler peeked in and there, in plain view, was the whole bed covered with marijuana. The police officer and the motel employees then closed the door, and the officer summoned detectives from the Normal Police Department. After several officers from the Normal Police Department arrived, an attempt was made to call the state's attorney's office to obtain a search warrant. Officer Fogler went to the motel office where he was furnished with a copy of the defendant's driver's license which included the defendant's picture.

Officer Fogler then took up a watch outside of Room 349. Within one-half to three-quarters of an hour, a man with a room key inhis hand came walking up the hallway toward Room 349. He appeared to be the same man pictured on the copy of the driver's license. Fogler asked the man who he was, and he identified himself as Orlando Alvarado. Motel employees opened the door to Room 350, immediately across the hall from Room 349, and placed the defendant and Officer Fogler in Room 350. Fogler placed handcuffs on the defendant and administered Miranda warnings. The defendant asked to speak with counsel. After some period of time passed, and officers had apparently been unable to secure a search warrant, Fogler asked Alvarado whether he would grant permission for a search. Alvarado said that he would grant permission to Fogler and Lt. Frank Zayas to search Room 349. He executed Defendant's Exhibit 2, a written permission to search form. No search warrant was issued.

Officers subsequently searched Room 349 and seized a large amount of material alleged to be cannabis. It is this material which the defense seeks to have suppressed."

Three facts need clarification. First, the motel manager opened the door to the room at his own initiative, not at the officer's request. Therefore, the initial viewing of the room is not at issue. Second, the attempt to obtain a search warrant was still in progress when the officers asked for defendant's consent to search. The officers informed defendant of this when they requested his consent. Third, defendant consented to the search 14 minutes after he was taken into custody.

The trial court next set out its conclusions of law in the written order:

"HOLDING(S)S OF LAW

Whether a consent is voluntarily given or is coerced is ordinarily a question of fact. [Citations.] The voluntariness of a consent must be proved by clear and positive testimony which established that there was no actual, or implied duress or coercion. U.S. vs. Tolias, 548 F.2d 277 (9 C.C.A., 1977); People v. Haskell, 41 Ill. 2d 25, 241 N.E.2d 430 (1968). The consent must be shown to be unequivocal and specific, and every reasonable presumption is indulged against a waiver of fundamental constitutional rights. [ Haskell, 41 Ill. 2d at 31, 241 N.E.2d at 433-34.] The fact that Miranda warnings had been given prior to the consent to search is a factor which tends to show voluntariness. People v. DeMorrow, 59 Ill. 2d 352, 320 N.E.2d 1 (1974); People v. Shaver, 77 Ill. App. 3d 709, 396 N.E.2d 643, 33 Ill. Dec. 254 (1979). Although Orlando Alvarado did not demonstrate any resistance to the request of the police for permission to search Room 349, he had previously requested the assistance of counsel. The court finds that this request for the ...


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