Appeal from the Circuit Court of Du Page County. No. 08-CF-2844 Honorable Blanche Hill Fawell,Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Jorgensen
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Burke concurred in the judgment and opinion.
On June 3, 2009, after a bench trial, defendant, David D. Burton, was found guilty of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a), (e) (West 2008)), unlawful possession of firearm ammunition by a felon (720 ILCS 5/24-1.1(a), (e) (West 2008)), possession of a firearm without a firearm-owner's identification (FOID) card (430 ILCS 65/2(a)(1), 14(c)(3) (West 2008)), and being an armed habitual criminal (720 ILCS 5/24-1.7(a)(3) (West 2008)). Prior to trial, on April 15, 2009, the trial court denied defendant's motion to quash his arrest and to suppress the weapon that formed the basis of the charges. On appeal, defendant argues that the court erred in denying his motion to suppress, because there was no valid consent for the warrantless search of his coat pocket. For the following reasons, we affirm.
The evidence at the hearing on defendant's motion to suppress revealed that, on October 14, 2008, defendant resided at a Carol Stream apartment with his girlfriend of seven years, Candace Garland, and her two children, mother, and three siblings. Defendant resided at the apartment for approximately nine months (from February 2008 until his arrest on October 14, 2008). The apartment contains a front living space, a kitchen, two bedrooms, and a bathroom. At one time, defendant and Garland shared the back bedroom. Both agreed, however, that, as of October 14, 2008, Garland did not share the back bedroom with defendant, i.e., defendant was the only person to use the bedroom. The bedroom contains a closet with two doors such that the closet may be accessed from the bedroom and the bathroom. In the closet is a stacked washing machine and dryer that the apartment's occupants use. Garland kept some clothing and other items in the closet next to the washing machine and closer to the bathroom, and defendant kept all of his clothes on the opposite closet wall, closer to the bedroom and separate from Garland's belongings. Garland's name is on the lease to the apartment; defendant's name is not.
On October 14, 2008, at 8:44 p.m., a radio dispatch alerted Carol Stream police officers John Bucholz and Peter Spizzirri to a possible domestic incident at the apartment. At 8:46 p.m., the officers arrived at the apartment. Garland answered the door and invited the officers inside. Defendant was in the back bedroom, but walked to the front area of the apartment after the officers entered. According to defendant, he was on his cell phone at the time, asking his mother to send over a truck so that he could take his belongings, including his furniture, and leave the apartment. Spizzirri confirmed that he heard defendant on his cell phone making arrangements to leave the residence.
The officers informed Garland that police had received a call from her brother and sister about a domestic disturbance. While there was, apparently, an earlier disagreement between defendant and Garland's sister, both Garland and defendant denied that it was a physical altercation. According to the officers, there were no apparent physical injuries to either party and the apartment contents were undisturbed (i.e., no furniture knocked over or other evidence of a fight). Nevertheless, to make further inquiries, Bucholz walked with Garland toward the kitchen while Spizzirri and defendant remained in the front room. At 8:49 p.m. (three minutes after their arrival), while the officers were separately speaking with Garland and defendant, the dispatcher announced to the officers that there was sensitive information for them and, at 8:52 p.m., the dispatcher informed the officers that, according to Garland's brother and sister, defendant kept a gun and drugs in the apartment, specifically, in a closet/laundry room off of one of the bedrooms and in an attic access panel in the ceiling of that closet.
At that time, Bucholz walked Garland toward the bedroom and explained that there might be a gun and drugs in the closet. Garland appeared surprised and "a little upset" and pointed out the closet to Bucholz. According to Bucholz, Garland told him to "go ahead and search." Thereafter, Garland signed a consent-to-search form authorizing the officers to search the "apartment." After Garland signed the form, Bucholz left her in the bedroom and walked to the front room to give the form to Spizzirri, to give to defendant. Bucholz then returned to the bedroom; he was not present when Spizzirri asked defendant to sign the form. Garland testified that she could hear only parts of the conversation and heard defendant say that he was not going to sign the form, because Garland's signature was already on it.
According to Spizzirri, after receiving the radio transmission about a possible weapon and drugs, he, for safety reasons, patted down defendant and instructed him to sit at the kitchen table. Bucholz and Garland walked to the bedroom; Bucholz ultimately returned with a consent-to-search form that he and Garland had already signed. Bucholz gave Spizzirri the form, and Spizzirri told defendant about the dispatch information concerning drugs and weapons. Spizzirri asked defendant to sign the form, and "[defendant said] you can search. Go ahead and search. He said, I will not sign the form because I'm not on the lease. I don't see as to why I would have to sign that form if I'm not on the lease." Spizzirri summarized that, while defendant refused to sign the consent form, he did not refuse consent to search the apartment:
"Q. You also asked for consent to search the apartment?