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11/08/96 PEOPLE STATE ILLINOIS v. SHAWN CARTER

November 8, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SHAWN CARTER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 95-CF-1392. Honorable Charles V. Romani, Judge, presiding.

As Corrected November 26, 1996.

Presiding Justice Hopkins delivered the opinion of the court: Goldenhersh, J., and Chapman, J., concur.

The opinion of the court was delivered by: Hopkins

PRESIDING JUSTICE HOPKINS delivered the opinion of the court:

Defendant, Shawn Carter, appeals from his conviction, after a stipulated bench trial, of the offense of unlawful production of cannabis sativa plants. On appeal, defendant argues that the trial court erred in denying his motion to suppress evidence. We find that the court should have granted the motion to suppress. Accordingly, we reverse and remand for a new trial.

I. ISSUE ON REVIEW

The facts and precise issue presented by this appeal are apparently unique in Illinois and United States Supreme Court reported decisions. We consider whether the fourth amendment to the United States Constitution and the Illinois Constitution, article I, section six, require the suppression of evidence observed in a warrantless search of a residence where the police illegally entered the residence prior to obtaining a search warrant and where the same police stayed inside the residence for over two hours waiting for the residents to return and refuse consent to search before the officers decided to apply for a search warrant. Under the circumstances of this case, we believe that both Federal and State constitutional law require that the evidence seized must be suppressed.

II. FACTS

The following facts are not disputed. Defendant and his mother, Jo Ann Landers, were both arrested in their home on the evening of July 17, 1995. When they arrived home from work, at least two Collinsville policemen were in the apartment defendant and his mother shared. The police did not have arrest or search warrants. After the residents refused to consent to a search of the apartment, the police decided to apply for a search warrant, which was issued at 11:35 p.m. Defendant's mother was eventually dismissed from the case. On August 2, 1995, defendant filed a motion to suppress the evidence seized by the police. The trial court denied the motion to suppress, relying on Murray v. United States, 487 U.S. 533, 101 L. Ed. 2d 472, 108 S. Ct. 2529 (1988), and People v. Bielawski, 255 Ill. App. 3d 635, 194 Ill. Dec. 373, 627 N.E.2d 710 (1994).

The following evidence was presented at the hearing on defendant's motion to suppress. Defendant testified in his own behalf that he returned home to his apartment at approximately 5:30 p.m. after work on July 17, 1995. When he arrived, two uniformed police officers were waiting inside the apartment. He did not consent to their entry, and they did not have a search warrant. Defendant rested.

The State called Collinsville police officer Scott Williams, who testified that on July 17, 1995, at approximately 3:15 p.m., he was dispatched to an apartment building in Collinsville. The reason for the dispatch was a telephone call from a maintenance man for the building, who reported that he discovered marijuana plants growing in an apartment when he went inside to fix a leak. Williams testified that the maintenance man showed him the window of the apartment where the marijuana was growing. Williams testified that he stood outside the apartment and looked through the window into the kitchen. According to Williams, he was able to see, "sitting in plain view, on top of the microwave, *** a full tray of marijuana plants." Williams and the other officer with him, Sergeant Edward Delmore, learned the names of the occupants of the apartment from the maintenance man.

On cross-examination, Williams testified that the maintenance man told the officers that he had been in the apartment about 15 minutes before the officers arrived and that no one was home at that time. At 3:30 p.m., the maintenance man unlocked the apartment door at the officers' request. The officers went inside the apartment and checked every room and every closet and under the beds but found no one home. After finding no one home, the officers stayed inside the apartment to wait for the occupants to return. Williams testified that he sat at the kitchen table while he waited and that he looked through the mail to check for the names of the residents. He also found a "High Times" magazine that he picked up and looked at to see whose name was on the mailing address, but he testified that he did not look through any drawers and that he did not "recall going through any other items" in the apartment. According to Williams, defendant arrived home at 5:50 p.m., after the two officers had been waiting inside defendant's apartment for 2 hours and 20 minutes.

Williams testified that when defendant arrived, they did not arrest him at first but instead asked for his consent to search the apartment. He refused.

While the officers continued to wait in the apartment for defendant's mother to return from work, Williams testified that two additional officers came to the apartment, one to replace Williams, who was scheduled to go off duty at 6 p.m., and another, Detective Reis, who interviewed Williams to get information to apply for a search warrant. Williams testified that defendant's mother arrived home at 7:05 p.m. on July 17, 1995, and that Sergeant Delmore made the decision to apply for a search warrant after defendant and his mother both refused to consent to the search.

Williams testified that he gave the following information to Detective Reis so that a complaint for search warrant could be prepared:

"A. We secured the apartment. Mr. Carter arrived. We interviewed him, asking him for consent. He refused. His mother returned, refused consent. And we decided that obviously, if we didn't have consent to search, we weren't going to search the apartment. So we decided to get the search warrant."

Williams testified in redirect examination that he had knowledge of all of the facts alleged in the affidavit for search warrant, absent his entry into defendant's apartment. The affidavit for search warrant was not signed by Williams but by Detective Reis, who did not testify at the hearing on the motion to suppress.

Sergeant Delmore's testimony essentially tracked that of Officer Williams. However, Delmore described his initial observation of the marijuana plants as follows:

"Q. Now, Sergeant Delmore, did you go outside of the premises to see if you could observe the cannabis plants through a window?

A. We actually walked down to the apartment, and as the maintenance man was opening the door to the apartment, we were able to see ...


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