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March 22, 1996


Appeal from the Circuit Court of Kane County. No. 92-CF-1979. Honorable James T. Doyle, Judge, Presiding.

The Honorable Justice Rathje delivered the opinion of the court: McLAREN, P.j., and Geiger, J., concur.

The opinion of the court was delivered by: Rathje

The Honorable Justice RATHJE delivered the opinion of the court:

Following a bench trial, defendant, Richard Kozlowski, was found guilty of the offense of unlawful possession of more than 30 but less than 500 grams of cannabis. Defendant was sentenced to a term of 24 months' probation. The sole issue raised on appeal is whether the trial court erred in denying defendant's motion to suppress evidence. The testimony pertinent to the above issue is summarized below.

Barbara Jane Karl testified that she and her husband, George Karl, were the managers of the Geneva Motel. Defendant rented a room by the week at the motel. The week ran Sunday through Saturday. There were no leases for the rooms. Prior to November 24, 1992, defendant had been staying at the motel for three weeks in room 27 and had paid his rent through Saturday, November 21, 1992. When defendant did not appear on Sunday or Monday, Mrs. Karl became concerned and began calling the local hospitals and even the county jail in an effort to locate the defendant to determine what his intentions were regarding the room he had rented. However, by Tuesday, November 24, 1992, when the defendant still had not been seen or heard from, the Karls concluded that they need to prepare the room to be rerented. George Karl packed up defendant's clothes and other personal possessions and placed them in a room used for storage.

Mrs. Karl testified further that, after defendant's possessions had been removed from room 27, she entered the room to clean it in preparation for renting it. After taking the bed apart, she discovered bags underneath the bed. She opened one of the bags and found what she described as a "weed type of thing." She also observed several individual plastic bags with the same type of material inside. She believed the substance was marijuana, based upon an exhibit she had seen at the Kane County Fair. She asked her husband to look at the bags, after which Mr. Karl locked the door to the room and contacted the Kane County sheriff's office.

Mrs. Karl further testified that she was in the motel office when, prior to the arrival of the authorities, the defendant returned to the motel and headed toward his room. Mrs. Karl dialed 911, requesting immediate assistance. Defendant appeared at the office, and Mrs. Karl engaged him in conversation hoping to keep him there until the police arrived. Prior to the arrival of the police, defendant paid his rent. According to Mrs. Karl, defendant asked if his things were still there. Mrs. Karl told him that they were, meaning that they were still on the motel grounds even though she assumed he was talking about room 27. When the Geneva police arrived, they also talked to defendant while waiting for the Kane County deputies to arrive. Eventually, two Kane County deputies arrived.

On cross-examination, Mrs. Karl testified that she believed that it was defendant's room that the police entered on November 24, 1992. On redirect examination, she testified that she did not tell the police that defendant had paid his rent prior to the police going to defendant's room. She reiterated that defendant's belongings were removed from the room because the Karls could not hold a room without being paid for it.

George Karl testified that, as of November 24, 1992, he considered defendant still to be a guest of the motel, just delinquent in his rent. He did remove defendant's property from the room; otherwise, the Karls would have been subject to criticism from the motel owners had they not attempted to make the room available for rerenting. According to Mr. Karl, the defendant was welcome to return "subject to availability." Mr. Karl further testified as follows:

"Q. But that was still his room under the agreement that you had with him?

A. Theoretically if he had come in, as he did, and paid his rent and put the stuff back in the room, it would have been his, yes.

Q. Before the room was up that way, before the police--excuse me, before the police entered the room, did he pay up for his arrears?

A. He did.

Q. And was that his room before the ...

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