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06/28/96 PEOPLE STATE ILLINOIS v. MOZELLA DURGAN

June 28, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MOZELLA DURGAN, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Vermilion County. No. 93CF87. Honorable John P. O'Rourke, Judge Presiding.

As Corrected August 29, 1996.

Honorable James A. Knecht, J., Honorable Robert J. Steigmann, J., Honorable John T. McCULLOUGH, J., Concurring. Justice Knecht delivered the opinion of the court:

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

Defendant Mozella Durgan appeals her conviction for possession of a controlled substance with intent to deliver, a violation of section 401(c)(2) of the Illinois Controlled Substances Act (720 ILCS 570/401(c)(2) (West 1992)). We affirm.

On March 16, 1993, defendant was arrested in her home. The following day, she was charged with possession of a controlled substance with intent to deliver. She filed a motion to suppress, asserting the evidence which had been obtained in her home at the time of her arrest was the product of an illegal search and seizure.

The hearing on the motion to suppress occurred in January 1994. At the hearing, the following facts were established from testimony by several law enforcement agents. On March 16, 1993, law enforcement agents were conducting surveillance and investigation of drug activity at a residence at 710 Chandler Street in Danville, Illinois. A controlled buy using a confidential informant had taken place in the house on the previous day. On March 16, people entered and left the house throughout the afternoon. Sometime roughly around 4:30 p.m. an informant went into the house and again made a controlled purchase of rock cocaine using marked or recorded currency. The informant saw other drugs inside the residence. The investigators maintained surveillance until several uniformed officers arrived. The police decided to seize the house and hold it until a search warrant could be obtained. They did not have any arrest warrants. The investigators had no reason to believe anyone inside the house was aware of the confidential informant. Narcotics investigator Richard Michael Bane, a member of the Vermilion County Metropolitan Enforcement Group (MEG), explained the decision:

"Q. [Defense counsel Walter Clifton:] Why did you make the decision that you would have to seize the house and hold it?

A. [Investigator Bane:] Well, we had three reasons. One reason was that we had buy money. That's evidence that was inside the house at that point in time. We also had information from the confidential source that there were more drugs inside the house, which would be evidence. And number three, we had people coming and going from the house. We were worried that with all the drugs being held in the house that they might leave as well as our money could leave. Our buy money that was inside the house could leave as well through change or else people going to buy groceries or whatever."

Officers stormed the house somewhere around 5 p.m. They searched from room to room to secure the house by taking persons from any rooms to the living room. Five persons were found: defendant, her husband Carl, her two sons Carl, Jr., and Adrian, and her daughter Carla. The police handcuffed all of them and made them lie down on the living room floor. Defendant was squirming around on the floor, and Investigator Bane noticed her body covered a small plastic bag containing white powder. Dennis Stark, a special agent with the Illinois State Police, took possession of the plastic bag as well as $15 in currency that was lying on the floor. The police asked defendant for consent to search her house, but she refused. After defendant's refusal to consent to a search of the house, Investigator Anthony Ardis, of the Vermilion County MEG, left to obtain a search warrant. While waiting for the search warrant, defendant's son Carl, Jr., told investigators where cocaine and guns were located in the house. The investigators did not search the house during this time.

Investigator Ardis obtained a search warrant around 7:30 p.m. and finally arrived back at the house around 8 p.m. The search warrant authorized the police to search for narcotics, narcotics packaging, weapons, and money. The search warrant was based only on facts obtained prior to the entry into the house. Investigators first recovered the cocaine and guns described to them by defendant's son Carl, Jr. They then recovered other drugs and weapons.

The trial court took the motion under advisement. In a written ruling, the trial court found the police entered the house based on exigent circumstances, for the sole purpose of securing the premises and preserving evidence until a search warrant was issued. Once inside the house, the $15 in currency and the plastic bag containing cocaine were properly seized because they were in plain view. The additional items were properly searched for and seized after the search warrant had been issued and served. Therefore, the trial court denied defendant's motion to suppress.

Defendant proceeded to a stipulated bench trial. Some of the evidence consisted of the items discovered during the search of defendant's home. In addition, Theresa Parker, the confidential informant who had made the controlled cocaine buys from defendant, would so state if called to testify. She purchased .2 grams, and lab reports would confirm the substance she purchased was cocaine. In May 1994, the trial court found defendant guilty. In December 1994, the trial court sentenced defendant to 4 1/2 years' imprisonment. Defendant now appeals.

The State first asserts defendant has waived the search issue because it was not raised in a post-trial motion. Defendant asserts we should address this issue under the plain error rule. 134 Ill. 2d R. 615(a). The plain error rule is a limited exception to the waiver rule and may be invoked where the alleged error is so fundamental it may have deprived the defendant of a fair hearing. People v. Beals, 162 Ill. 2d 497, 511, 643 N.E.2d 789, 796, 205 Ill. Dec. 498 (1994). For the reasons that follow, we conclude defendant was not denied a fair ...


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