Appeal from the Circuit Court of McHenry County. No. 96--CF--1362 Honorable Thomas A. Schermerhorn, Sr., Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
Defendant, Kenneth Huffar, was charged with the manufacture of cannabis and the possession of cannabis with the intent to deliver (720 ILCS 550/5(d) (West 1998)). He moved to suppress evidence, arguing that the search that disclosed it violated his rights under the fourth and fourteenth amendments (U.S. Const., amends. IV, XIV). The trial court granted that motion. The State appeals, arguing that a third party's valid consent supported the search. We affirm.
At the hearing on the motion to suppress, the trial court heard the following evidence. Dorothy L. Fay testified that she owned a two-unit apartment building. She lived on the first floor, in apartment No. 1. During the relevant period, defendant lived on the second floor, in apartment No. 2. The apartments had separate living quarters, utilities, and mail service.
The building contained an attic that could be accessed only through a stairway in apartment No. 2. When a tenant rented apartment No. 2, he rented the attic as well. Defendant rented apartment No. 2 on a month- to-month basis. He paid $350 per month, plus utilities.
One day, defendant's waterbed began to leak, and Fay entered his apartment to repair it. Defendant was not present. Later that day, police officers came to Fay's apartment. After a discussion, Fay agreed to let the police search the attic. She signed a consent form and told the officers how to access the attic. She did not accompany them because the door to apartment No. 2 was unlocked. Defendant still was not present.
On cross-examination, Fay testified that defendant had not signed a written lease. When she went into apartment No. 2 to repair the waterbed, she noticed some extension cords running into the attic. A door separated the attic from the rest of apartment No. 2, but the door had no lock. She went into the attic and saw "black plastic" hanging from the ceiling. The attic contained some items that Fay owned but did not use. On redirect examination, Fay stated that, if she wanted to use those items, she would ask her tenant for permission to retrieve them.
Jeff Rhode was one of the officers at the scene. He testified that the building contained an upper and a lower unit, but he did not see any apartment numbers. He described the building as "just an old home," distinguished only by the fact that a kitchen was on each floor. Fay told him that she owned the building and that defendant, her grandson, lived upstairs. She indicated that defendant was renting the "upstairs area." Rhode did not recall asking Fay what specifically was included in the leased premises.
Rhode told Fay that the police had received a complaint and asked for permission to search the attic. Fay executed a consent form, and Rhode asked her how to get to the attic. Fay told him that he would "have to go through her grandson's area to get to the doorway which led to the attic." Rhode followed Fay up an internal stairway from the first floor to the second floor. He noticed that an external stairway provided a mode of direct entry onto the second floor.
The door to the attic was open. There was no other practical way to enter the attic. In the attic, Rhode found a large, black plastic bag that contained cannabis.
On cross-examination, Rhode testified that Fay told him that she had been in the attic earlier in the day. She said that defendant rented the "upper apartment" but that she had personal items in the attic. Rhode believed that she was able to consent to a search of the attic.
After its motion for a directed finding was denied, the State called Daniel P. Wesolek, another officer who was at the scene. He testified that he saw a marijuana leaf in the "second floor apartment." However, the police merely walked through the second floor on the way to the attic; they collected evidence from no other part of the building.
On cross-examination, Wesolek testified that he did not observe that the building contained two separate apartments. He noticed that each floor had living quarters and a kitchen, but he did not see two mailboxes. He also noticed that an outer stairway provided a direct entrance onto the second floor. On the first floor, he observed only a family room and a kitchen. He did not ask Fay what portion of the building was rented. After Fay led the police to the second floor, they saw that they could enter the attic only by passing through those living quarters. The door to the attic was open.
Defendant recalled Fay for rebuttal. She testified that, before she signed the consent form, she and the officers did not discuss how the building was divided. On cross-examination, she stated again that she did not go upstairs with the officers; she merely told Rhode that he could search the attic.
The trial court stated that the second floor was a separate unit that the police were not authorized to search. As a result, the court ruled, the officers were not permitted to enter that unit to get to the attic. Defendant's motion to suppress was granted, and the State's motion for reconsideration was denied. The State filed a certificate of impairment and notice of appeal. See 145 Ill. 2d R. 604(a)(1). Although defendant did not file an appellee's brief, we will address the ...