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10/04/96 PEOPLE STATE ILLINOIS v. GREGORY ACCARDI

October 4, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GREGORY ACCARDI, DEFENDANT-APPELLANT. THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE, V. HOLLY ACCARDI, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 92--CF--1570. Honorable Thomas E. Hogan and John L. Peterson, Judges, Presiding. Appeal from the Circuit Court of Kane County. No. 92--CF--1838. Honorable Thomas E. Hogan and John L. Peterson, Judges, Presiding.

Rehearing Denied November 5, 1996. Released for Publication November 5, 1996.

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

The opinion of the court was delivered by: Thomas

Powell decided that he and other members of the task force would go to defendants' property and try to obtain a consent to search it. Accordingly, on September 15, 1992, Powell and five or six other agents drove to defendants' property. One of the officers knocked on the door and Holly Accardi answered it. The officer requested that she wake her husband, Greg Accardi. Greg Accardi then accompanied the officers on a search of the property. The agents located and confiscated several marijuana plants. Greg Accardi was arrested and taken to the county jail. No one ever showed defendants a search warrant.

The marijuana plants grew near a chicken coop immediately adjacent to defendants' house. A long driveway services the house, a large barn, and the chicken coop. Trees surround the entire area encompassed by the three buildings, preventing them from being seen from either Route 38 or Meredith Road.

Both defendants were charged with the unlawful possession of cannabis. Defendants moved to quash their arrests and suppress evidence obtained as a result of the warrantless search of their property. At a hearing on the motion, defendants testified that neither of them ever gave the agents permission to search the property. Greg Accardi specifically denied signing a consent to search form. However, Powell testified that he presented Greg Accardi with a consent to search form and that the latter signed it, using the back of Agent Douglas Lamz as a writing surface. Two other agents who participated in the search stated that they saw Greg Accardi sign the consent to search form. Lamz testified that Greg Accardi was presented with the form, and Lamz believed that he signed it, although he could not see him do it. Each officer denied that he forged Greg Accardi's name on the consent form.

Jean Brundage, a document examiner for the Illinois State Police, testified that Greg Accardi's signature on the consent to search form was a forgery. The testimony of Steven Kane, an expert retained by the defense, was admitted by stipulation. Kane also concluded that Accardi's signature on the form was forged.

After the hearing, the parties argued the validity of the consent form. In response to a question by the court whether the plants could be seized without a warrant because they were in plain view from the airplane, the State cited Florida v. Riley, 488 U.S. 445, 102 L. Ed. 2d 835, 109 S. Ct. 693 (1989).

The court denied defendants' motion, finding that, pursuant to Riley, "the curtilage of someone's property is not always subject to the Fourth Amendment language regarding searches and seizures especially when there is a helicopter or plane involved." The court did not make any findings on the consent issue.

The court denied defendants' motion to reconsider. Defendants then submitted to a stipulated bench trial before a different judge, preserving the issues raised in the suppression motion. The court found defendants guilty, and they perfected this appeal.

Defendants contend that the court erred by relying on Riley to deny their motion to suppress. Defendants argue that the area in which the plants were found was within the curtilage of their home. Therefore, the police could not physically enter the curtilage to seize the plants without a warrant or evidence of some exception to the warrant requirement.

Ordinarily, a ruling on a motion to suppress will not be disturbed unless it is manifestly erroneous. People v. Frazier, 248 Ill. App. 3d 6, 12, 187 Ill. Dec. 369, 617 N.E.2d 826 (1993). However, where the facts and the credibility of the witnesses are uncontroverted, the issue becomes solely a question of law, subject to de novo review. Frazier, 248 Ill. App. 3d at 12-13. Here, the facts regarding the flyover and subsequent warrantless search of the property are essentially undisputed. Therefore, we review this question de novo.

In California v. Ciraolo, 476 U.S. 207, 90 L. Ed. 2d 210, 106 S. Ct. 1809 (1986), police flying in a fixed-wing aircraft observed marijuana growing in defendant's yard. The officers then obtained a warrant and searched the property. Although defendant's yard was surrounded by a double fence, the inner ring of which was 10 feet high, the Supreme Court held that the flyover was not a "search" within the meaning of the fourth amendment. The court found that defendant's subjective expectation of privacy was unreasonable because the police made their observations from the public airspace and thus saw no more than any private citizen could have seen from the same location. Ciraolo, 476 U.S. at 213-14, 90 L. Ed. 2d at 217, 106 S. Ct. at 1813.

In Florida v. Riley, 488 U.S. 445, 102 L. Ed. 2d 835, 109 S. Ct. 693 (1989), the court followed Ciraolo in holding that a warrant was not required for an officer's observation of marijuana from a helicopter hovering 400 feet above defendant's property. Writing for a four-person plurality, Justice White explained that Ciraolo held that "the home and its curtilage are not necessarily protected from inspection that involves no physical invasion." Riley, 488 U.S. ...


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