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The People of the State of Illinois v. Samuel Absher

May 19, 2011

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
SAMUEL ABSHER, APPELLEE.



The opinion of the court was delivered by: Justice Freeman

JUSTICE FREEMAN delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.

OPINION

Following a stipulated bench trial, the circuit court of St. Clair County convicted defendant, Samuel Absher, of unauthorized possession of a controlled substance (720 ILCS 570/402(c) (West 2002)). The appellate court reversed. No. 5--04--0729 (unpublished order under Supreme Court Rule 23). We granted the State's petition for leave to appeal and now reverse the judgment of the appellate court.

I. BACKGROUND

On March 18, 2004, pursuant to a fully negotiated guilty plea, defendant was convicted in the circuit court of St. Clair County of retail theft. In exchange for his plea, defendant was placed on probation for a period of two years. The agreement provided that defendant was to serve the first year in accordance with St. Clair County's "Intensive Probation Supervision" program, followed by a second year of "standard" probation. During the period of "intensive" probation, defendant agreed to abide by a number of conditions in addition to the general probation restrictions. The probation order stated, in relevant part:

"9. *** [Y]ou shall further obey and comply with such other reasonable rules and regulations as are defined in article #10.

10. SPECIFIC RULES AND REGULATIONS OF INTENSIVE PROBATION SUPERVISION:

(c) submit to searches of your person, residence, papers, automobile and/or effects at any time such requests are made by the Probation Officer, and consent to the use of anything seized as evidence in Court proceedings."

On May 17, 2004, a St. Clair County probation department officer--assisted by officers from the Belleville police department--searched defendant's residence pursuant to this probation condition and discovered cocaine and marijuana. Defendant was thereafter charged with one count of felony unauthorized possession of a controlled substance (720 ILCS 570/402(c) (West 2002)).*fn1

Prior to trial, defendant filed a motion to suppress the evidence recovered from his residence. Defendant contended that although he agreed to the suspicionless search condition contained in article 10(c) of the probation order, the search nevertheless violated his right to privacy in his residence because it was not based upon reasonable suspicion and he had not consented to the officers' entry.

At the suppression hearing, St. Clair County probation officer E.J. Jarvis testified that on March 18, 2004, he met with defendant and explained to him the conditions of his probation, including the provision contained in article 10(c) allowing suspicionless searches of defendant's residence. Jarvis stated that defendant posed no questions regarding the agreement as a whole nor with respect to any specific provision prior to signing it. In relation to Jarvis' testimony, defense counsel stipulated that there was no dispute that defendant had knowingly and voluntarily agreed to the intensive probation conditions.

George Chester, the supervisor of the intensive probation program at the St. Clair County probation department, testified to observing defendant on May 17, 2004, when defendant visited the probation office for a regularly scheduled meeting. Defendant's conduct led Chester to suspect that defendant may have been under the influence of drugs. Based upon this observation, combined with a review of defendant's file, Chester believed that defendant "was in possession of a controlled substance at his residence." Pursuant to the search condition contained in article 10(c) of defendant's probation order, Chester contacted the State's Attorney's office and obtained authorization to search defendant's home. Chester then arranged for officers from the Belleville police department to accompany a probation officer in executing the search of defendant's residence later that evening.

St. Clair County Probation Officer Burdett Rice testified that Chester instructed him to search defendant's home later that evening. Rice and officers from the Belleville police department arrived at defendant's residence at approximately 10 p.m. Rice knocked on the door and informed defendant that the officers were there to perform a "routine search." Defendant replied, "no, you are not tonight," and tried to close the door. Rice prevented defendant from closing the door, and forced entry into defendant's home. The ...


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