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The People of the State of Illinois v. Mario Lomax

June 29, 2012

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
MARIO LOMAX, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 09 CR 8588 Honorable Marcus Salone, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Robert E. Gordon

PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Justice Lampkin concurred in the judgment and opinion.

Justice Garcia dissented, with opinion.

OPINION

¶ 1 After being charged with eight counts of unlawful use of a weapon by a felon and one count of being an armed habitual criminal, defendant Mario Lomax (defendant) filed motions to quash the arrest and suppress evidence claiming that the police did not have the authority to enter and search his home without a warrant. After the suppression hearing, the court granted defendant's motions. The State filed a motion to reconsider, which it later supplemented, and the court denied the State's motion. The State appeals. We reverse.

¶ 2 BACKGROUND

¶ 3 On May 7, 2009, the State charged defendant with eight counts of unlawful use of a weapon by a felon, pursuant to section 24-1.1 of the Criminal Code of 1961 (720 ILCS 5/24- 1.1(A), (E) (West 2008)) and one count of being an armed habitual criminal, pursuant to section 24-1.7(a) (720 ILCS 5/24-1.7(a) (West 2008)). Defendant subsequently filed motions to quash arrest and suppress evidence on October 22, 2009, arguing that his right to protection from unlawful searches and seizures, pursuant to the fourth amendment of the United States Constitution and article I, section 6 of the Illinois Constitution, had been violated. U.S. Const., amend. IV; Ill. Const., 1970, art. I, § 6. The court held a suppression hearing on June 29, 2010, at which Chicago Police Officer Andrew Thomas gave the following testimony.

¶ 4 I. Officer Thomas's Testimony

¶ 5 Officer Thomas testified that, on April 25, 2009, he and his partner were directed to a "two flat multiunit" building on South Wells Street in response to multiple calls to 911 from citizens claiming that gunshots had been heard. Officer Thomas testified that his incident report did not state whether the 911 calls had provided a specific unit number at the South Wells address, but he testified that the calls had specifically stated that the shots had been fired in and around the "first floor rear" unit of the building. Officer Thomas testified that the calls stated that people had heard shots fired both inside and outside of the first-floor rear unit and that a door to the first-floor rear unit had been loudly slammed. The officer further testified that none of the calls had identified a shooter. Officer Thomas testified that the 911 dispatcher continued receiving calls after Officer Thomas and his partner began driving toward the South Wells Street address. Officer Thomas testified that he and his partner tried to arrive at the building as quickly as possible and that they arrived at the building within two to three minutes after receiving the first dispatch call. Officer Thomas described this as a fairly quick response time. Officer Thomas testified that he and his partner were concerned about the serious nature of the calls and that they knew that they needed to arrive at the address as quickly as possible because people might be hurt or in danger.

¶ 6 Officer Thomas testified that, upon arriving at the building, he and his partner approached the door to defendant's apartment, which was the "first floor rear" unit, and he knocked and announced that he and his partner were Chicago police officers. A child between the ages of two to four answered the door, and the officers observed an area inside the apartment. Officer Thomas testified that he observed two adult women and three small children. When asked about the children's ages, Officer Thomas testified that he could not determine exactly how old they were, but speculated that they were most likely between the ages of two to four.

¶ 7 Officer Thomas testified that he told the five individuals to exit the apartment without asking them any questions. Immediately after they exited, Officer Thomas observed defendant and told him to exit the apartment. Officer Thomas testified that he told the occupants to exit the apartment because of the serious nature of the call. Officer Thomas did not observe anyone inside the apartment who was in distress, injured, or in need of medical attention and did not observe any contraband. Officer Thomas and his partner entered the apartment to perform a "visual safety check" to ensure that no one had been shot. There is no issue that the subject apartment belonged to defendant.

¶ 8 The officers searched the bedrooms, bathroom, and main room of the apartment. Officer Thomas testified that in his search of one of the bedrooms, he observed body armor, a pistol holster, pistol belt, and pistol ammunition. Officer Thomas testified that his partner told him that he observed a pistol in the main room of the apartment. Defendant was then taken into custody as the officers conducted a search of the outside of the building. Officer Thomas testified that he observed four spent shell casings on the ground outside of defendant's apartment.

¶ 9 Officer Thomas admitted that he and his partner did not have a warrant to search the apartment and did not receive consent to enter or search the apartment. Officer Thomas testified that he ordered the occupants to exit the apartment and then conducted a search without a warrant because of the serious nature of the 911 calls. He testified that he was worried that someone inside may have been shot and in need of aid. He testified that the he conducted the search pursuant to public safety concerns, and that because the police department had received numerous calls complaining of shots fired, he was concerned that someone was hurt.

¶ 10 The trial court granted defendant's motions to suppress evidence and quash the arrest. The trial court found that the officers failed to ask the occupants any questions about whether they had made the 911 calls or if anything was wrong before entering the apartment. The trial court further found that the entry was improper because the officers did not receive consent to enter from any occupant, nor did they immediately observe any evidence that an emergency was in progress or that anyone was in distress. The trial court stated that multiple calls to 911 were not enough to allow police officers to conduct warrantless searches of drawers and crawl spaces. The trial court further stated: "So the officer says he responds to a call of shots fired. Maybe it's a legitimate call, maybe not. There are a number of calls that talk about reports coming from [the address]. At least one of them is more specific according to the Officer's testimony. One takes him directly to the apartment in which the defendant is located. Based upon this number of calls, it's now okay for the police to go through your underwear drawer. Let's search. Who knows. Because we have got this call. *** And maybe somebody is in the crawl space." Later, at the reconsideration hearings, the prosecutor offered to proffer that, if Officer Thomas were called to testify, he would testify that he and his partner did not search through drawers or crawl spaces. The trial court further found that the children, at most, acquiesced to the officers' command to exit the apartment. The trial court concluded that the officers' actions did not appropriately meet the balance of interests required to allow a warrantless entry and search, in light of the factual situation presented in the case.

¶ 11 II. Reconsideration Hearings

¶ 12 On July 26, 2010, a hearing was held, and the State requested leave to file a motion to reconsider the court's rulings on the motions to quash the arrest and suppress evidence. The trial court found that the police had no basis for selecting defendant's apartment based upon the evidence provided at the suppression hearing, because Officer Thomas and the parties had described the building as "multiunit." Based upon the use of that term, the trial court concluded that it had been led to believe that the building contained at least 12 units.*fn1 The trial court reviewed the hearing transcript and concluded the police had no reason for selecting the first-floor rear apartment based on Officer Thomas's description of the building. The trial court did not address the fact that Officer Thomas testified that callers had identified the first-floor rear unit as the location of the complained of gunshots.

¶ 13 In response, the State produced a photograph purportedly of the building to show that the police were justified in determining that defendant's apartment was the one referred to as the "first floor rear" unit in the 911 calls. Upon viewing the photograph, the trial court admitted that the building's layout was different than it had been led to believe based on Officer Thomas's testimony. The trial court criticized the use of the term "multiunit" by Officer Thomas and stated that Officer Thomas should have used the term "two-flat" without adding "multiunit." The trial court stated that knowing the building's layout made a "world of difference" to its decision regarding the officers' selection of defendant's apartment. However, the trial court pointed out that the photograph was not in evidence and could not be considered in the motion for reconsideration.

¶ 14 The State filed its motion after the hearing, and on August 20, 2010, the State filed a supplemental motion to reconsider. Both the State's original and supplemental motions to reconsider were predicated on the emergency aid exception to the warrant requirement of the fourth amendment to the United States Constitution and article 1, section 6 of the Illinois Constitution. On August 23, 2010, the State argued its motion to reconsider, claiming that the emergency aid exception applied to the search in this case. The State argued that the 911 calls provided a sufficient, objective belief that an emergency was in progress, necessitating immediate police response, and that the unit where the emergency existed was the first-floor rear unit that belonged to defendant. The State argued that the emergency aid exception exists because if immediate police action will prevent injury or death to citizens, that consideration will outweigh the "inconvenience" of warrantless police entry into a residence. The State argued that Officer Thomas and his partner were justified in believing that their entry into defendant's residence was necessary to prevent injury or death. That State further argued that the officers only conducted a plain view search of the apartment and that the officers did not look in any drawers, crawl spaces, or other closed-off locations, and that everything in plain view is admissible under the emergency aid exception. The State offered to proffer that, if Officer Thomas were called to testify at trial, he would testify that neither he nor his partner opened any drawers or crawl space doors.

¶ 15 The trial court found that the testimony of Officer Thomas was inconclusive about why he and his partner chose to only investigate defendant's apartment to the exclusion of the other apartments. The trial court therefore found no "objective basis" for the police to select defendant's apartment and denied the State's motion. The trial court found that an objective basis could have been established simply by asking the occupants questions before ordering them to vacate the apartment. The trial court further found that, although it appreciated the need for the police to act promptly when responding to 911 calls, allowing the police to conduct a warrantless search of a dwelling based upon the information available to the officers in this case would not be "good law." The trial court also doubted whether a response time of two to three minutes could be considered "prompt." The State appeals.

¶ 16 ANALYSIS

¶ 17 On appeal, the State claims that the officers' actions were justified by the emergency aid exception to the warrant requirement and that the trial judge made improper findings of fact.

¶ 18 I. Standard of Review

¶ 19 In reviewing a trial court's ruling on motions to suppress evidence and quash arrest, a reviewing court must consider questions of both law and fact. People v. Jones, 215 Ill. 2d 261, 267 (2005). Findings of historical fact may only be overturned if such findings run counter to the "manifest weight of the evidence." Jones, 215 Ill. 2d at 268. "A judgment is against the manifest weight of the evidence only when an opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based on evidence." Bazydlo v. Volant, 164 Ill. 2d 207, 215 (1995). This deferential standard of review exists because the trial court is in a superior position to determine and weigh the credibility of the witnesses, observe witnesses' demeanor, and resolve conflicts in their testimony. Jones, 215 Ill. 2d at 268. The reviewing court is free to make its own assessment of the facts when drawing legal conclusions on the issues presented. Jones, 215 Ill. 2d at 268. Therefore, this court reviews de novo the ultimate question of whether or not the motions to quash arrest and suppress evidence should have been granted. Jones, 215

Ill. 2d at 268. De novo consideration means we perform the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 20 II. The Trial Court's Factual Findings

¶ 21 The State argues that certain factual findings by the trial court run contrary to the manifest weight of the evidence and must be reversed. Specifically, the State argues that the trial court based its decision in part on the belief that the police officers searched through drawers and crawl spaces at defendant's apartment and that the police had no reason to select defendant's apartment as the source of the gunshots.

¶ 22 At the suppression hearing, the trial court remarked that at least one of the 911 calls led Officer Thomas "directly to the apartment in which the defendant is located." Months later, at the hearing during which the State petitioned for leave to file its motion to reconsider, the trial court found that it had "failed to hear any objective basis for concluding that the call for service was directed to the apartment that the officer directed the occupants out of." The court did not reconcile this finding with its previous statement that Officer Thomas testified that at least one call directed them to defendant's apartment; the court did not find the officer's testimony unreliable nor did it acknowledge its previous finding.

¶ 23 At the suppression hearing, the trial court restated the facts of the case and included a statement that the police went through drawers and looked in crawl spaces when there is nothing in the record to support this finding. Nothing in the record suggests that the police officers did anything more than perform a plain view safety search. There is no evidence in the record that the police opened up any drawers or crawl spaces. The record is not very informative about the extent of the officers' search, but the only indication in the record that suggests drawers and crawl spaces had been searched comes from the trial court's erroneous factual findings. Neither party ever argued that anything beyond a plain view search had occurred. The trial court had no reason to rely on a finding of fact that the court assumed without evidentiary support. See Wade v. City of North Chicago Police Pension Board, 226 Ill. 2d 485, 507-08 (2007) (finding that the trial court's conclusions regarding the credibility of an expert witness were against the manifest weight of the evidence because the witness' conclusions were not based upon "relevant, material evidence that was key under the circumstances of the case") (internal quotation marks omitted).

¶ 24 The dissent finds that the trial court's statement at the first hearing about going through drawers and crawl spaces was nothing more than a hypothetical statement. Infra ¶ 90. However, at the reconsideration hearing, the prosecutor offered to proffer that Officer Thomas, if called to testify, would specifically deny searching through drawers and crawl spaces because the State believed that the trial court did rely on such a finding. In effect, the prosecutor was attempting to correct an erroneous factual finding. There was no reason for a proffer to correct a hypothetical. In addition, the record indicates that the trial court misunderstood the layout of the South Wells building and how Officer Walker was directed to the first-floor rear apartment. A reasonable person could conclude that the trial court misunderstood other parts of Officer Walker's testimony as well.

¶ 25 For these reasons, we find that the trial court's factual findings were against the manifest weight of the evidence and we will review the denial of the motions de novo.

¶ 26 III. The Emergency Aid Exception

¶ 27 The fourth amendment to the United States Constitution secures the right of citizens to be "secure in their persons, houses, papers, and effects against unreasonable searches and seizures." (Emphasis added.) U.S. Const. Amend. IV; see also Elkins v. United States, 364 U.S. 206, 213 (1960) (holding that the fourth amendment applies to state officials through the fourteenth amendment). The central requirement of fourth amendment analysis is reasonableness. Illinois v. McArthur, 531 U.S. 326, 330 (2001). Specifically, courts must examine whether the totality of the circumstances surrounding the particular invasion of the citizen's person or property was reasonable. Jones, 215 Ill. 2d at 268. The United States Supreme Court has held that the fourth amendment establishes "rules and presumptions designed to control conduct of law enforcement officers" which may violate citizens' rights against improper search and seizure. Jones, 215 Ill. 2d at 269 (quoting McArthur, 531 U.S. at 330).

¶ 28 Generally, a search is unreasonable if it is not done pursuant to a warrant supported by probable cause. Jones, 215 Ill. 2d at 268. However, exceptions to the warrant requirement exist, and the totality of circumstances can render a warrantless search reasonable under the fourth amendment. McArthur, 531 U.S. at 330. When determining whether a warrantless search is reasonable, courts must balance the legitimate promotion of government interests against the intrusion of fourth amendment principles. Jones, 215 Ill. 2d at 269; People v. Ramos, 353 Ill. App. 3d 133, 148 (2004). See also United States v. Knights, 534 U.S. 112, 121 (2001) (holding that lower ...


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