Appeal from the Circuit Court of Cook County, Illinois No. 11 CR 5148 The Honorable Carol M. Howard, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Harris
PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Connors and Simon concurred in the judgment and opinion.
¶ 1 The State charged defendant, Neil Krinitsky, with possession of more than 5,000 grams of cannabis with intent to deliver; possession of more than 500 grams, but less than 2,000 grams of cannabis with intent to deliver; possession of less than 50 grams of methylenedioxymethamphetamine (MDMA) with intent to deliver and possession of hydrocodone with intent to deliver. Defendant filed a motion to dismiss, quash his arrest, and suppress evidence, which the circuit court granted. The circuit court denied the State's subsequent motion for reconsideration. At issue is whether the circuit court properly granted defendant's motion to dismiss, quash his arrest, and suppress evidence. We hold that the State has not met its burden of proving that exigent circumstances existed to justify the entry into defendant's apartment. Therefore, the circuit court did not err in granting defendant's motion to dismiss, quash his arrest, and suppress evidence. We hold the State has waived its initial argument on appeal for failing to first raise it in the circuit court. Additionally, we hold the State has not shown it has satisfied the elements of the "consent once removed" doctrine. We note that we express no opinion on whether the doctrine should be adopted by this court, just that it does not apply to the specific factual situation at issue here.
¶ 3 On October 31, 2011, the circuit court granted defendant's motion to quash his arrest and suppress evidence. On December 13, 2011, the circuit court denied the State's motion to reconsider. On December 28, 2011, the State filed a certificate of substantial impairment and appealed the circuit court's ruling. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule 604. Ill. S. Ct. R. 604 (eff. July 1, 2006); see also People v. Drum, 194 Ill. 2d 485 (2000).
¶ 5 The State charged defendant with possession of more than 5,000 grams of cannabis with intent to deliver; possession of more than 500 grams but less than 2,000 grams of cannabis with intent to deliver; possession of less than 50 grams of MDMA with intent to deliver; and possession of hydrocodone with intent to deliver.
¶ 6 Defendant filed a motion to dismiss, quash his arrest, and suppress evidence based on the exclusionary rule enunciated in Mapp v. Ohio, 367 U.S. 643 (1961), and the fourth amendment right to be secure from unreasonable search and seizures. In his motion, defendant alleged that prior to his March 9, 2011, arrest, the Illinois State Police were working with a "cooperating subject." He alleged that "while working with and at the direction of the Illinois State Police, the cooperating subject retrieved 15 pounds of a substance containing cannabis from his vehicle." The Illinois State Police then directed the cooperating subject to contact defendant in order to sell defendant the cannabis. Defendant alleged the cooperating subject entered his residence, "stayed inside the residence for a period of time and left." Shortly after the cooperating subject's exit, "multiple law enforcement officers who were standing by [ ] entered" his residence without either a warrant or defendant's consent. Defendant further alleged that "no exigent circumstances existed that necessitated forced entry into [his] residence without a search or arrest warrant" and that the police "had enough time to properly secure a search warrant *** without fear that such [a] large amount of cannabis would be removed." Defendant alleged the entry into his residence was illegal and, therefore, any evidence or contraband should have been suppressed, and his arrest quashed. He requested the circuit court quash his arrest, dismiss the complaints against him, suppress any evidence from his search and arrest, and bar the State "from any direct or derivative use of the suppressed evidence."
¶ 7 At the hearing on the matter, defendant called Special Agent Lloyd Graham of the Illinois State Police and Max Koch, defendant's roommate at the time of the incident, to testify. Officer Graham testified he is employed as a special agent for the Illinois State Police as a narcotics agent. At approximately 10:30 a.m. on March 9, 2011, he received a call from "TASC force Officer Fuchi" about a person named "Tardona" who was on his way to Chicago. Tardona had been caught in Iowa with a large amount of cannabis during a traffic arrest. Tardona was delivering the cannabis to an address in Chicago. Roughly 11 hours later, at either 9:30 or 10 p.m. that night, Officer Graham met Tardona at the police station. When asked what he was doing when he met with Tardona, Officer Graham answered, "[w]e were getting people together in order to complete our operation." He explained that the operation was "[t]he delivery of cannabis that was coming from Iowa," and to have Tardona deliver the cannabis. Officer Graham did not contact the State's Attorney's office prior to having Tardona complete the deliveries nor did he attempt to secure any kind of warrant. The meeting was completed "within an hour," at which point in time Officer Graham and 10 other officers went to 1153 West Webster Avenue, Apartment 4W, in Chicago, Illinois. The officers were from "TASC force," which Officer Graham explained contained officers from several different agencies. Officer Graham testified they had Tardona deliver the cannabis to the address in question. Officer Graham did not have a search or arrest warrant, and he did not ask for consent from any of the residents of the apartment. When Officer Graham entered the apartment, with about eight other officers, defendant fainted and injured his head.
¶ 8 On cross-examination, Officer Graham testified that Tardona had previously been in contact with defendant in February of 2011 for the delivery of five pounds of cannabis. Officer Graham learned that Tardona had planned to make a delivery of 15 pounds of cannabis with a price of $30,000 to defendant on March 9, 2011. The cannabis was in a dark-colored suitcase. The plan Officer Graham and several other officers formulated was to have Tardona deliver the cannabis to defendant at 1153 West Webster Avenue, Chicago, Illinois. During the delivery, Officer Graham maintained constant contact with Tardona through text messages. When asked what his instructions were to Tardona, Officer Graham answered, "[u]pon [defendant] taking possession of the cannabis, he was to text message me letting me know that information." Officer Graham described the apartment complex as having a "court way" with a "common door." The building had "bells where you ring individual tenants within the complex." Defendant's name was on one of the bells to ring. Officer Graham learned that defendant would have had to "buzz the door" in order to have a guest enter the lobby area of the apartment building. Upon entering the building, four flights of stairs led to defendant's apartment. He observed Tardona, with the dark-colored suitcase, going into the apartment after being "buzzed in" by defendant. Officer Graham testified that when he was on the landing outside defendant's apartment, he smelled "a strong odor of burnt cannabis" coming from the apartment. There was one other unit on the landing, but Officer Graham did not smell any cannabis-like smells coming from that other unit. As he waited outside defendant's apartment, Officer Graham received several text messages. The first message Officer Graham received stated, "He's fingering it." Officer Graham testified he believed this to mean defendant had purchased the cannabis from Tardona. Officer Graham then sent Tardona a text message telling him to "come on out." Officer Graham described Tardona's reply, which was also by text message, "and he sent me a text message back saying: I have received your next text message, but it was blank. And within that text message he also stated: That in three minutes I'm coming out no matter what." Tardona then came out of defendant's apartment in the next three minutes. Officer Graham saw Tardona open the door to defendant's unit, and the smell of cannabis intensified. When Tardona exited, he left the door to defendant's unit open. Officer Graham and his fellow officers entered the unit and Officer Graham saw the dark-colored suitcase in the hallway. Defendant was leaning over the delivered cannabis when Officer Graham entered the unit. In addition to the 15 pounds of cannabis delivered by Tardona, cannabis was found in every room in the apartment except for the "first bedroom." After entry, Officer Graham received consent from defendant to search the apartment. He found "[d]rug paraphernalia, additional cannabis, additional narcotics, cash money." Officer Graham recovered $30,000 in cash from inside the dark-colored suitcase.
¶ 9 On redirect examination, Officer Graham clarified that Tardona had been arrested in a traffic stop in Iowa where the police learned that Tardona was on his way to Chicago to deliver the cannabis to defendant at defendant's residence. Officer Graham did not know where the prior transaction between Tardona and defendant occurred. The following exchange then occurred between Officer Graham and defendant's attorney:
"MR. BERTUCCI [defendant's counsel]: Now you had the address where Mr. Tardona was going to deliver that cannabis?
Q. And you had the amount of cannabis?
Q. You had the amount of money that was going to be exchanged for that cannabis?
Q. And that was all information that you could use to get a search warrant, is that correct?
MS. BOOKER [Assistant State's Attorney]: Objection. THE COURT: Overruled.