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February 9, 1995


Appeal from the Circuit Court of Cook County. Honorable Leo E. Holt, Judge Presiding.

The Honorable Justice Theis delivered the opinion of the court: Hoffman, P.j., and O'brien, S., J., concur.

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

Following a jury trial, the defendant, Michael Abt, was found guilty of possession of cocaine with intent to deliver (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1401(a)(2)) and possession of cannabis (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 705(d)), and sentenced to concurrent prison terms of six years and one year, respectively. The defendant raises two issues on appeal: (1) whether the trial court erroneously denied his motion to quash his arrest and suppress evidence, and (2) whether he was denied effective assistance of counsel. We conclude that the warrantless arrest did not violate the defendant's fourth amendment right because exigent circumstances were present. We also conclude that the defendant failed to meet his initial burden of showing an unlawful search and seizure, therefore the trial court properly denied his motion to suppress. Finally, we find that the defendant was not deprived of his sixth amendment right to effective assistance of counsel. Therefore, we affirm.


Michael Abt was charged by information with one count of possession of more than 15 grams but less than 100 grams of cocaine with intent to deliver and one count of possession of more than 30 grams but less than 500 grams of cannabis with intent to deliver. Prior to trial, the defendant moved to quash his arrest and suppress the evidence seized by the arresting officers. The defendant argued that his arrest was illegal because the officers failed to obtain a warrant prior to entering his home without consent, and that exigent circumstances were absent.

At the hearing on the motion, the defendant testified to the following sequence of events. At approximately 1 a.m. on April 14, 1989, his friend Alan Schmidt knocked on the back door of his home. Schmidt had visited Abt's home a few minutes prior to this, but Abt had not given him anything. When Abt opened the door, two police officers entered his home. Prior to the officers' entry, neither the defendant nor anyone else spoke. Then, one officer raced down the flight of stairs into Abt's basement, while the other held him against the wall with a gun to his throat. The officer then brought him into the basement. The defendant also stated that he did not consent to the officers' entry.

Next, Officer Richard Anderson testified that on April 14, 1989, he was conducting a surveillance of Abt's home with two other officers, Peter Bukiri and Thomas Wiggins, as part of a narcotics investigation. He stated that the police had been observing the defendant's residence for about four days prior to his arrest. Anderson testified that during the four days, he witnessed people pulling up in cars, walking to the rear of the defendant's home, returning a short time later and then driving away. On cross-examination, Anderson admitted that at the preliminary hearing he testified that he only saw two people approach the defendant's door during the four days of surveillance.

Anderson further testified that on the night of April 13, 1989, he saw Schmidt knock on the defendant's back door. He stated that he heard Schmidt ask the defendant for a "16th" and saw Schmidt hand over money to the defendant. Schmidt then entered the house and re-emerged a short time later. The officer stated that he observed Schmidt and the defendant from a position that was approximately 25 to 30 feet from the defendant's back door. Anderson indicated that he was unable to determine whether a controlled substance exchanged hands, but believed that a drug transaction was in progress.

Anderson recalled that as Schmidt walked toward the front of the house, the officers approached him and identified themselves as police officers. Schmidt then "broke down and began crying" and handed the officers two colored packets containing white powder. After they placed Schmidt under arrest, he agreed to return to the defendant's home to participate in a controlled buy by attempting to purchase narcotics from the defendant in the officers' presence.

Schmidt promptly returned to the defendant's back door, with Anderson and Bukiri positioned against the wall of the house on either side of the door. When the defendant answered the door, Schmidt asked for either a "16th" or "dope." Anderson further testified that the defendant indicated that if Schmidt had the money, he could come in. As Abt began walking down the stairs to the basement, the officers followed. Anderson identified himself as a police officer and arrested Abt at the bottom of the stairs.

At the end of the suppression hearing, the trial court found that the defendant was not aware of the officers' presence during the controlled buy and that the officers merely followed Schmidt into the defendant's home. The court also noted that the defendant did not invite the officers in or consent to their entry. Nonetheless, the court found that the officers entered the home peacefully because the defendant opened the door to Schmidt. The court finally concluded that given the evidence presented, there were exigent circumstances which paralleled the situation in People v. Eichelberger (1982), 91 Ill. 2d 359, 438 N.E.2d 140, 63 Ill. Dec. 402. Therefore, it denied the defendant's motion.

At trial, Officer Richard Anderson again testified. His description of the investigation and events leading up to the arrest was substantially similar to that given at the hearing on the motion to quash and suppress. He could not specifically recall whether there was another individual in the basement at the time of the arrest. He further testified that he and the other officers confiscated various pieces of evidence from the defendant's basement which included the following: plastic bags containing cannabis, a clear plastic bag containing cocaine, a triple-beam scale, a smoking pipe, a spoon withburnt residue, an oil can, $1,556, a container of pills and three pieces of the defendant's identification. Anderson testified that he could see all of the above-listed items from where he stood in the basement following the defendant's arrest.

Officer Peter Bukiri also testified at trial on behalf of the State. His testimony was essentially the same as that of Anderson, except that Bukiri believed that he, Anderson, and Wiggins were in the basement at the time of the defendant's arrest. Also, Bukiri stated that after the defendant received his Miranda warnings, ...

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