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07/25/95 PEOPLE STATE ILLINOIS v. DENISE TURNIPSEED

July 25, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DENISE TURNIPSEED, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Richard E. Neville, Judge Presiding.

The Honorable Justice Hartman delivered the opinion of the court: DiVITO, J., concurs. McCORMICK, J., dissents.

The opinion of the court was delivered by: Hartman

JUSTICE HARTMAN delivered the opinion of the court:

Following a bench trial, defendant Denise Turnipseed was convicted of possession of a controlled substance with intent to deliver and possession of cannabis with intent to deliver. She was sentenced to a nine-year prison term for possession of a controlled substance with intent to deliver. On appeal, defendant contends that the circuit court erred in denying her motion to suppress the evidence. Specifically, she argues that a search of her person exceeded the scope permitted under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, that she did not voluntarily consent to a search of her apartment and that the police needed a warrant to break open two safes seized from the apartment.

At a hearing on the motion to suppress, Chicago Housing Authority police officer Robert Marszalek testified that at 3:15 p.m. on November 4, 1992, he and Officer Timothy Hatcher went to 730 East 39th Street in response to a report of a woman with a gun. The dispatcher described the suspect as a 30-year-old black woman, who was wearing a brown coat and blue jeans. Marszalek stated that when they arrived, they observed defendant, who fit the description, arguing with her neighbors in the building lobby. The neighbors asked the police to persuade defendant for an extension of time to pay the $50 they owed her for crack cocaine. When Marszalek replied that their concern at the time was whether someone had a gun, the neighbors stated that defendant had a gun and threatened them with it if they did not pay the drug debt.

Marszalek testified that at that time, they conducted a pat-down search of defendant, recovered two rounds of ammunition and a small packet of cannabis and placed her under arrest. After defendant was arrested and given the Miranda warnings, she allowed the officers to enter her apartment, stating that she had nothing to hide. The officers did not have a consent-to-search form with them and did not request one from the assisting units. Defendant opened the door to the apartment using her key, and the officers observed rounds of ammunition scattered on the floor. At that point, defendant walked quickly into a bedroom. Marszalek, who followed immediately behind her, observed her run toward an open safe and slam the door of the safe shut. Before she closed the door, Marszalek observed a white powdery substance in a plastic bag inside the safe, which he believed was crack and cocaine. The safe was stacked on top of another safe, which was closed. The officers then handcuffed defendant and continued their search. They observed two "high-tech" scales, a large bowl containing a pasty substance that could be used to make the base for crack cocaine, pipes and additional drug paraphernalia. The officers inventoried the items, took the safes to the police station and pried them open.

Defendant testified at the suppression hearing that she was talking to the building president when the police arrived and asked her if she had a gun and then searched her, but found nothing. One officer told defendant that they were going to her apartment. Defendant responded that she had been searched and that they were not going to her home. The officer then grabbed her by the shoulder, and they went to her apartment. When they arrived at her apartment door, defendant asked the officer to leave, but he refused. After she unlocked the apartment door, the police pushed her inside and handcuffed her to a weight bench while they searched the apartment. Defendant stated that the officers broke down the locked door of her son's bedroom and removed two safes. Defendant denied ownership of the safes and stated that she did not have the combination. Defendant refused to sign a consent-to-search form at the police station.

The circuit court denied defendant's motion to suppress the evidence. The court found that Officer Marszalek's testimony was more credible than defendant's. The court noted that defendant testified that she did not want the police to enter her apartment. She could have prevented them from entering, however, by not unlocking her apartment door. The court also found that defendant was arrested in the lobby of her building and that she consented to the search of her apartment. Finally, the court found that the officers were able to see the cocaine in the safes and that there was no reason to obtain consent for the removal of the safes because defendant denied ownership of them.

Defendant first argues that the police lacked probable cause to arrest her and that the search of her person exceeded the scope permitted under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. She cites several cases stating the proposition that a police officer exceeds his authority under Terry when, while conducting a protective pat-down, he seizes an object which he knows is not a weapon. See People v. Creagh (1991), 214 Ill. App. 3d 744, 748, 574 N.E.2d 96, 158 Ill. Dec. 302.

Initially, we disagree with defendant's characterization of the police conduct as a Terry stop. The police responded to a call concerning a woman with a gun and found defendant, who met the description, arguing with her neighbors over a drug debt. The neighbors informed the police that defendant had a gun and threatened to use it if they did not pay her what they owed. Other than asserting that the neighbors were "simply not credible," defendant cites no authority and makes no argument that the facts known to the officers at that time were insufficient to establish probable cause for her arrest. We find that they were sufficient to indicate probable criminal activity, and that the contraband was found during the course of a lawful search incident to the arrest. See People v. Hoskins (1984), 101 Ill. 2d 209, 216, 461 N.E.2d 941, 78 Ill. Dec. 107, citing United States v. Robinson (1973), 414 U.S. 218, 235, 38 L. Ed. 2d 427, 440-41, 94 S. Ct. 467, 477.

Defendant next contends that the circuit court's finding that she voluntarily consented to a search of her apartment was manifestly erroneous. She maintains that her testimony that she refused consent was more credible than Officer Marszalek's testimony and was supported by the fact that she did not sign a consent-to-search form. She also argues that her arrest was a coercive circumstance that rendered the consent involuntary.

Conflicts in testimony must be resolved by the trier of fact based upon the credibility of the witnesses. ( People v. Buie (1992), 238 Ill. App. 3d 260, 269, 606 N.E.2d 279, 179 Ill. Dec. 447.) A reviewing court will not disturb the circuit court's finding on a motion to suppress unless that finding is manifestly erroneous. People v. Reynolds (1983), 94 Ill. 2d 160, 165, 445 N.E.2d 766, 68 Ill. Dec. 122.

Whether consent has been voluntarily given is a factual determination made by the circuit court which the reviewing court will accept unless it is clearly unreasonable. ( People v. DeMorrow (1974), 59 Ill. 2d 352, 358, 320 N.E.2d 1.) The fact that defendant was under arrest does not, standing alone, establish that the consent was involuntary. People v. Holliday (1983), 115 Ill. App. 3d 141, 143, 450 N.E.2d 355, 70 Ill. Dec. 882.

The circuit court's determination concerning consent was based on the credibility of the witnesses. Defendant herself testified that she used her key to allow the police officers entry into her apartment. This is a significant factor that supports the court's finding of consent. We find no ...


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