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09/26/95 PEOPLE STATE ILLINOIS v. FLAGAN T. PICKENS

September 26, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
FLAGAN T. PICKENS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Shelby County. No. 93-CM-160. Honorable David W. Slater, Judge, presiding.

The Honorable Justice Kuehn *fn1 delivered the opinion of the court. Welch and Hopkins, JJ., concur.

The opinion of the court was delivered by: Kuehn

JUSTICE KUEHN *fn1 delivered the opinion of the court:

On June 15, 1993, defendant Flagan T. Pickens was charged byinformation with unlawful possession of not more than 2.5 grams of cannabis per section 704(a) of the Cannabis Control Act (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 704(a) (now 720 ILCS 550/4 (West 1994))). Defendant filed a motion to suppress evidence seized in a December 17, 1992, consent search of his house. On October 27, 1993, the court heard defendant's motion to suppress. Following the hearing, the circuit court entered an order suppressing the evidence. The State filed a motion for reconsideration. On February 4, 1994, the court heard and denied this motion. The State timely filed a certificate of impairment to allow an appeal pursuant to Supreme Court Rule 604(a)(1) (145 Ill. 2d R. 604(a)(1)).

On appeal, the State contends that the trial court was manifestly erroneous in suppressing the evidence and that the case should be remanded for trial. We disagree and affirm the trial court's order.

At the October 27, 1993, suppression hearing, the court heard the following evidence.

Shelby County Sergeant Todd Shadwell, a Central Illinois Drug Task Force Inspector, testified that the Central Illinois Drug Task Force received an anonymous tip on December 17, 1992. The tip involved drug activity at a residential address in Herrick, Illinois. Sergeant Shadwell and Inspector Elam, another member of the Task Force, went to the Herrick address. The two inspectors knew that defendant Pickens and Jason Cole (Cole) lived at the address. They had no information that anyone else lived there. They knocked on the front door. A man known to the inspectors as Rodney Burris (Burris) answered the door. Sergeant Shadwell asked Burris if Cole or defendant Pickens, the known residents of the house, were home. Burris told Sergeant Shadwell that Cole and defendant Pickens were not present. Sergeant Shadwell noticed an individual asleep on the living room couch and asked Burris who the individual was. Burris indicated that this individual was Curt Allen (Allen). Sergeant Shadwell wanted to speak to Allen and asked Burris to have Allen come to the door. Burris did not react, So Sergeant Shadwell called to Allen and identified himself as a police officer. Allen came to the door. Sergeant Shadwell asked Allen if he was staying at the house, and Allen acknowledged that he was. Sergeant Shadwell and Inspector Elam had no information that Burris or Allen lived at defendant's house. Sergeant Shadwell told Allen about the anonymous tip and then asked Allen if he and Inspector Elam could search the premises. Allen gave verbal consent to search. Sergeant Shadwell and Inspector Elam searched the house for approximately 30 to 45 minutes and seized drug paraphernalia and suspected drugs. All reports prepared by Sergeant Shadwell refer to the search as a consent search.

Rodney Burris testified that the night before the search, several people stayed at defendant's residence. The police requested permission to come in the residence, but Burris did not allow entry. Burris told the police that he did not live at the house and could not give permission to search the premises. After Burris denied permission to search, the two inspectors asked and received permission from Allen. Sergeant Shadwell and Inspector Elam searched the house.

Defendant Pickens testified that he was the sole owner of the house, and that Cole was his only tenant. Other people, including Burris and Allen, sometimes spent the night. Occasionally, Allen stayed at his house a couple nights per week. Allen lived with his parents outside Herrick. Allen stayed at defendant's house when he did not have a ride home. Allen did not pay defendant rent, utilities, or other expenses. Defendant did not give the police permission to search his house. Defendant did not give Allen the authority to consent to a search of his house.

The State raises three points on appeal. The State contends that the trial court's suppression order should be reversed because the court erred in holding that an apparent authority consent search is invalid. The State then asserts that the case should be remanded because Sergeant Shadwell's testimony showed that the officers had a reasonable belief that they had consent to search. Finally, the State contends that the trial court's suppression order should be reversed because the court erred in holding that only a resident could consent to a search.

Initially, we note that a trial court's ruling on a motion to suppress will not be disturbed unless clearly erroneous. ( People v. Melock (1992), 149 Ill. 2d 423, 432, 599 N.E.2d 941, 944, 174 Ill. Dec. 857; People v. Henderson (1990), 142 Ill. 2d 258, 293, 568 N.E.2d 1234, 1251, 154 Ill. Dec. 785.) When the facts and the credibility of the witnesses are not in dispute, the question presented is a legal one that the reviewing court may consider de novo. People v. Foskey (1990), 136 Ill. 2d 66, 76, 554 N.E.2d 192, 197, 143 Ill. Dec. 257; People v. Galdine (1991), 212 Ill. App. 3d 472, 478-79, 571 N.E.2d 182, 187, 156 Ill. Dec. 595.

We first consider whether the trial court erred in concluding that the third party Allen lacked common authority to consent to the search of defendant's house.

In United States v. Matlock (1974), 415 U.S. 164, 39 L. Ed. 2d 242, 94 S. Ct. 988, the United States Supreme Court held that the fourth amendment does not prohibit a warrantless search conducted with the consent of a third party possessing common authority over the premises. Actual common authority is defined as "mutual use of the property by persons generally having joint access or control formost purposes ***." ( Matlock, 415 U.S. at 171 n.7, 39 L. Ed. 2d at 250 n.7, 94 S. Ct. at 993 n.7.) Common authority is recognized in situations with family, marital, or cohabitant relationships. (See, e.g., Foskey, 136 Ill. 2d at 87, 554 N.E.2d at 202; People v. Brown (1987), 162 Ill. App. 3d 528, 539-40, 515 N.E.2d 1285, 1291-92, 114 Ill. Dec. 14; People v. Palmer (1962), 26 Ill. 2d 464, 470, 187 N.E.2d 236, 240.) The third party's degree of authority and control over the residence cannot be substantially inferior to that degree possessed by the defendant, and the third party's right to occupy and use the residence must equal or exceed the defendant's right of occupation. ( People v. Keith M. (1993), 255 Ill. App. 3d 1071, 1084, 625 N.E.2d 980, 988-89, 192 Ill. Dec. 825.) A social guest does not possess common authority to validly consent to a search of a residence. ( People v. Speer (1989), 184 Ill. App. 3d 730, 736-37, 540 N.E.2d 1089, 1093, 133 Ill. Dec. 223.) If a guest resides elsewhere, the guest may not claim an interest in the host's house. People v. White (1987), 117 Ill. 2d 194, 212, 512 N.E.2d 677, 683, 111 Ill. Dec. 288.

Factually, the question turns on whether Allen had common authority to consent to a search of the house. Allen was not listed on defendant's lease. Allen did not reside with defendant and lived elsewhere with his parents. Allen occasionally stayed at defendant's residence when he had no ride home. Allen contributed nothing towards defendant's rent or utilities. In light of this evidence, we find that the trial court ...


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