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March 26, 1996


Appeal from the Circuit Court of Cook County. No. 94 CR 29126. The Honorable Robert W. Bertucci, Judge Presiding.

The Honorable Justice DiVITO delivered the opinion of the court: Hartman, P.j., and Burke, J., concur.

The opinion of the court was delivered by: Divito

The Honorable Justice DiVITO delivered opinion of the court:

Following a bench trial, defendant Ivano Pierini was convicted of possession with intent to deliver more than 500 grams of cannabis and was sentenced to two years' probation, with a $2,000 fine. The sole issue in this appeal is whether the circuit court erred in denying his pretrial motion to suppress evidence. For the reasons that follow, we reverse and remand.

At the suppression hearing, Chicago police officer Terry Shields testified that at approximately 7:40 p.m. on October 4, 1994, two other officers, a Drug Enforcement Administration agent, and he went to defendant's home, which was located on the second floor of a three-flat building on North Sheffield Avenue in Chicago. They went there to investigate information provided by a confidential informant as part of a two-week investigation of cannabis trafficking in the Italian Village area around Loomis and Taylor Streets. They did not have a search or arrest warrant because the information provided was insufficient to obtain either.

Officer Shields testified that when he knocked on the door, defendant simultaneously opened the door and asked who was there. He noticed "[a] strong aroma of reefer, cannabis, fresh cannabis emanating from there." By "fresh," he meant "uncut, unsmoked reefer." When Officer Shields noticed the odor, he was standing "in the doorway at the door" and had not yet entered the apartment. After smelling the cannabis, he observed that "just next to the door inside to the right on like a nightstand was a cigar box full of half-smoked marijuana cigarettes and roaches, roach cigarettes," or partly smoked cannabis cigarettes. He reached in the doorway, picked one up, smelled it, and determined that it was cannabis. Although he had "an idea" that the cigarette contained marijuana, he was not certain until he picked it up. He was familiar with the odor of cannabis from other investigations. After determining that the cigarette contained cannabis, he immediately arrested defendant and advised him of his rights.

Officer Shields then tried to determine the source of the odor of fresh cannabis. The odor emanated from "a rear room like a bedroom next to the kitchen." Without obtaining a search warrant, Officer Shields found and searched a large duffel bag which contained approximately 35 individual packets filled with what was later determined to be approximately 28 pounds of cannabis. He also found a pouch with approximately $7,000 in cash in the same rear room. Officer Shields stated that he did not obtain a search warrant because defendant's wife was in another room at the time and there was a chance that the contraband which they subsequently found would be destroyed.

Although defendant offered evidence that contradicted the State's version as to how the police gained entry to the apartment, the circuit court found the State's evidence credible and denied defendant's motion to suppress. Following a bench trial in which there was a stipulation as to the evidence presented during the suppression hearing, defendant was convicted and sentenced as stated previously.

On appeal, defendant contends that the circuit court erred in denying his motion to suppress because no exigent circumstances existed to excuse the absence of a warrant. Where, as here, there is no challenge to the facts or the credibility of the witnesses, we review a motion to suppress de novo. People v. Foskey, 136 Ill. 2d 66, 76, 554 N.E.2d 192, 143 Ill. Dec. 257 (1990). We note that in the instant case the officers made separate seizures of the cannabis cigarettes and the packages in the duffle bag; we therefore address each in turn.

First, regarding the box of cannabis cigarettes, the State asserts that its seizure was lawful under the doctrine of plain view. A warrantless seizure of evidence is permissible under that doctrine because such a seizure does not constitute an intrusive invasion into private property in violation of the fourth amendment. People v. Hassan, 253 Ill. App. 3d 558, 569, 624 N.E.2d 1330, 191 Ill. Dec. 952 (1993), citing Coolidge v. New Hampshire, 403 U.S. 443, 466-67, 29 L. Ed. 2d 564, 583-84, 91 S. Ct. 2022, 2038-39 (1971). Three elements are required for a lawful plain-view seizure: (1) the officer must be lawfully present in the location from which he can plainly see the evidence; (2) it must be "immediately apparent" that the object in plain view is evidence; and (3) the officer must have a lawful right of access to the object itself. Hassan, 253 Ill. App. 3d at 569, quoting Horton v. California, 496 U.S. 128, 136-37, 110 L. Ed. 2d 112, 123, 110 S. Ct. 2301, 2308 (1990).

Here, it is not disputed that Officer Shields was lawfully present outside defendant's apartment. From that vantage point, it was immediately apparent to him, an experienced narcotics officer who detected the odor of fresh cannabis, that the hand-rolled cigarettes were evidence, notwithstanding his need to smell them to confirm his belief. Cf. People v. Graves, 196 Ill. App. 3d 273, 279, 553 N.E.2d 810, 143 Ill. Dec. 103 (1990), appeal denied, 133 Ill. 2d 564, 561 N.E.2d 699 (1990) (experienced officer possessed probable cause to believe cigarettes with twisted ends contained contraband).

As for whether Officer Shields had a lawful right of access to the object itself, the police are constitutionally prohibited from making a warrantless and nonconsensual arrest or seizure in a suspect's home. Payton v. New York, 445 U.S. 573, 576, 63 L. Ed. 2d 639, 644, 100 S. Ct. 1371, 1375 (1980). A seizure under such circumstances is unconstitutional even where there is probable cause, unless exigent circumstances exist to excuse the absence of a warrant. Payton, 445 U.S. at 588-89, 63 L. Ed. 2d at 652, 100 S. Ct. at 1381. Here, because Officer Shields lacked a warrant to arrest defendant or to search his home, unless exigent circumstances justified his entry, the seizure of the cannabis cigarettes must be suppressed.

Factors relevant to a determination of exigent circumstances include whether:

"(1) the crime under investigation was recently committed; (2) there was any deliberate or unjustified delay by the police during which time a warrant could have been obtained; (3) a grave offense was involved, particularly a crime of violence; (4) there was reasonable belief that the suspect was armed; (5) the police officers were acting on a clear showing of probable cause; (6) there was a likelihood that the suspect would escape if he was not swiftly apprehended; (7) there was strong reason to believe the suspect was in the premises; and (8) the ...

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