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11/26/97 PEOPLE STATE ILLINOIS v. RICHARD KEITH

November 26, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
RICHARD KEITH FINLEY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Fayette County. No. 94-CF-52. Honorable Patrick J. Hitpas, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court. Chapman and Hopkins, JJ., concur.

The opinion of the court was delivered by: Goldenhersh

The Honorable Justice GOLDENHERSH delivered the opinion of the court:

Following a jury trial, defendant, Richard Keith Finley, was convicted of unlawful possession of less than 15 grams of cocaine; he was found not guilty of unlawful production of cannabis. Defendant was sentenced to a term of five years' imprisonment in the Department of Corrections and ordered to pay a $500 drug assessment fine and a $50 lab fee.

Defendant raises two issues on appeal: (1) whether the court erred in denying the motion to suppress evidence where the court's reliance on the "consent once removed" doctrine was misplaced and (2) whether defendant is entitled to credit towards the $500 drug offense assessment for all the days he spent in custody. We reverse and remand.

I

On June 3, 1994, defendant was charged by indictment with the offense of unlawful possession with intent to deliver more than one gram but less than 15 grams of cocaine in violation of section 401(c)(2) of the Illinois Controlled Substances Act (the Act) (720 ILCS 570/401(c)(2) (West 1992)) and the offense of unlawful production of more than 50 cannabis sativa plants in violation of section 8(d) of the Illinois Cannabis Control Act (720 ILCS 550/8(d) (West 1992)).

On September 8, 1994, defendant filed a motion to suppress physical evidence and inculpatory and exculpatory statements. The motions alleged, among other things, that the police illegally entered defendant's residence, seized evidence, and coerced defendant into making statements.

At the September 19, 1994, hearing on defendant's motions, Larry Reid, an agent with the Southwestern Illinois Drug Task Force (Drug Task Force), testified that on May 12, 1994, he was involved in an investigation in which Randy Adams was arrested for the delivery of cocaine to an informant named Tim Johnson. Adams offered to cooperate as a confidential informer for the Drug Task Force and agreed to get cocaine from someone else. Adams advised the agents that he could obtain cocaine from Richard Finley, and he agreed to take the agents to the trailer where defendant was staying. The other agents present were Inspectors Kelvin Worker, Sparling, Robert Hatcher, and John Loy.

Adams led the agents to defendant's trailer in Shobonier. Reid instructed Adams to purchase an ounce of cocaine. Adams entered the trailer but returned shortly to inform Reid that defendant did not have an ounce of cocaine. Adams was told to return to the trailer and to get whatever amount of cocaine he could. Adams would make the prearranged signal if he obtained the cocaine, so that the agents would be alerted. Adams returned to the trailer and came back out, signaling that he had obtained the cocaine. Adams gave the cocaine to Reid and reported that there were cannabis plants inside the trailer.

Reid signaled the other officers that there were drugs in the trailer. The agents secured the area and entered the trailer. Once inside the trailer, Reid saw cannabis plants, as well as white powder in the bathroom.

Randy Adams testified that Reid arrested him earlier in the evening of May 12, 1994, for selling cocaine to a police informant. After his arrest, Adams agreed to assist the agents by purchasing drugs from others. Adams told the officers that he could get some cocaine from defendant. Adams then directed the officers to defendant's residence. Upon arriving at defendant's trailer, Adams knocked on the door and defendant let him in. Two other people were also present, Steve Cook and Heather McGeehon. Adams asked defendant for an ounce of cocaine, but defendant said he did not have that much. Adams left and told Reid, who was waiting in the vehicle, that he could not get an ounce of cocaine from defendant. Reid instructed Adams to go back and get whatever Adams could obtain. Adams reentered the trailer and obtained a gram of cocaine from defendant. Adams left the trailer and removed his hat, signaling that he had obtained the cocaine. Adams estimated that there were 10 agents around the trailer. Adams subsequently made a deal with the State for a minimum sentence if he testified against defendant.

Kelvin Worker, an inspector with the Drug Task Force, testified that he was among the other agents of the task force outside defendant's trailer. Worker believed there were a total of 14 officers at the scene. Worker saw Adams leave the trailer and give the signal. Reid activated the "panic button", signaling that there had been a drug sale in the trailer. Worker arrived at the door to the residence first. He testified that he just briefly knocked on the door and opened it in the same motion and went inside with his gun drawn. As he moved through the trailer, Worker announced "police". Worker encountered defendant in the bathroom and took him into custody.

Inside the trailer, Worker observed cannabis plants and grow lights as he moved down the hallway toward the back of the trailer and in the living room. Defendant offered to cooperate, telling the agents that the trailer belonged to Eugene Wilkerson and that defendant was taking cuttings of the ...


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