Filed August 6, 2013
Held[*] Consent by defendant’s sister to allow a police officer and other armed and masked officers to enter her house to talk to her about a complaint of drug activity at her house did not extend to allowing the other officers to follow defendant, who had been staying at the house and was standing nearby, when he went to the basement, and in the absence of a warrant, probable cause or exigent circumstances that would justify the officers’ intrusion into the basement, the drugs discovered there should have been suppressed pursuant to defendant’s motion; therefore, defendant’s conviction for unlawful possession of a controlled substance with intent to deliver within 1, 000 feet of residential property owned by a public housing agency was revesed.
Appeal from the Circuit Court of Winnebago County, No. 09-CF-1694; the Hon. Ronald J. White, Judge, presiding.
Thomas A. Lilien and Christopher McCoy, both of State Appellate Appeal Defender's Office, of Elgin, for appellant.
Joseph P. Bruscato, State's Attorney, of Rockford (Lawrence M. Bauer and Matthew J. Schmidt, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Panel Justices Schostok and Birkett concurred in the judgment and opinion.
¶ 1 After a jury trial, defendant, Myron D. Dawn, was convicted of possessing, with the intent to deliver, cocaine (720 ILCS 570/401(d) (West 2008)) within 1, 000 feet of residential property owned, operated, or managed by a public housing agency (720 ILCS 570/407(b)(2) (West 2008)). He was sentenced to 15 years' imprisonment. On appeal, he argues that the trial court erred in denying his motion to suppress evidence that the police seized after entering the home of his sister, Quanda Dawn, and following defendant into the basement. Defendant argues that the police exceeded the scope of Quanda's consent to their warrantless entry. We reverse.
¶ 2 We summarize the evidence at the hearing on defendant's motion to suppress. Quanda testified on direct examination as follows. At all pertinent times, she resided at 1603 Burton in Rockford with her son and daughter. As of June 4, 2009, defendant had been staying there for about a month; he was not there all the time, but he was always welcome. Defendant slept in the basement and kept "[a] lot of [his] stuff" there. At about 9 p.m. that night, as she lay in bed, Quanda heard someone at the side door, so she walked into the kitchen. Defendant was standing inside the side door and a Rockford police detective, Robert Reffett, was outside the door. Quanda saw no other people. Reffett asked Quanda whether she lived there; she said yes. Quanda testified, "He said to me that he needed to talk to me–well, he might have said he needed to talk to me or could he talk to me. And when he said that, I said 'sure, come on in, ' because I was half-presentable in clothes, so I invited him on in."
¶ 3 Quanda testified that, after she "had [taken] like two little steps going up to her kitchen, "on the way to the living room, she heard other people enter and saw defendant go down the stairs toward the basement. He was walking slowly. Three or four men, dressed in black and wearing masks, were following him. Quanda had not invited them in; she had not even known that they had been there. The men said nothing to her. Quanda escorted Reffett to the living room, where they talked. He said that an alderman had relayed complaints that drug activity was going on in her home.
¶ 4 Quanda testified on cross-examination as follows. Before the police entered the home, Reffett had not told her the purpose of the visit. She and Reffett had gotten partway into the kitchen when she saw the other men enter and go straight downstairs. Quanda explained to Reffett that defendant stayed with her only two or three days a week. She added that recently a young woman had come to her door and asked, "Do y'all got some weed?" Quanda related that she told the woman that nothing like that went on in her home and the woman apologized and left.
¶ 5 Defendant testified as follows. As of June 4, 2009, he had been staying in Quanda's home and was keeping his clothing and a computer there. After Reffett and Quanda started talking at the door, defendant saw no reason to stay. He went downstairs to watch the NBA playoffs in the computer room, where Quanda's daughter was sitting. As he reached the bottom of the stairs, three or four men started descending the stairs. All were dressed in black and one or two were masked. Defendant soon realized that they were police officers. One officer asked defendant whether he had any weapons. Defendant said no, and, to prove it, he lifted up his shirt, then unbuckled his pants and let them drop. An officer told defendant to pull up his pants, which he did. The officer then handcuffed defendant, and several officers went through his pockets.
¶ 6 The State first called Reffett, who testified on direct examination as follows. On the evening of June 4, 2009, he went to 1603 Burton, accompanied by Sergeant Randy Berke and three other detectives: Rossow, Veruchi, and Wassner. All wore vests labeled "Police." Reffett, Rossow, and Veruchi accompanied Berke to a side door as Wassner went to the rear of the building. Reffett knocked on the door. Defendant answered. Reffett identified himself and asked to speak with defendant. Defendant told him to wait a second; at that time, Quanda came to the door. Reffett again identified himself and "asked if [he] could speak with her for a moment." Quanda asked what the visit was about. Reffett explained that the police had received a complaint about possible drug sales from the home. "Pretty much just as [Reffett] ended [his] sentence, " defendant turned around and started walking toward the basement. Quanda then said, "Please come in, I'd like to talk to you about this." She did not limit the invitation to Reffett. At the time, Berke, Rossow, and Veruchi were standing "directly behind" Reffett, "just right off the side." Reffett followed Quanda to the kitchen, then to the living room.
¶ 7 Reffett testified on cross-examination as follows. The police did not have a warrant. Shown his police report, Reffett conceded that he had asked Quanda whether "I" could talk to her, not whether "we" could do so. At the time, Berke and Rossow had been standing directly behind him, with Veruchi off slightly to his left. Reffett explained to Quanda that the police were responding to a narcotics complaint. He never said, "I [or "We"] want to search your home." Defendant walked down the stairs; he did not run or make furtive movements, and Reffett saw no weapons or contraband on him. Reffett testified, "The only weird thing about that is as soon as I told Quandra [sic] I want[ed] to talk to her about possible illegal drugs were [sic] being sold from the residence, [defendant] immediately turned and started walking down the stairs."
¶ 8 Reffett testified on redirect examination that, in his police report, he had written, " 'I asked if I could speak with her for a moment, ' " but had also written, " 'Quandra [sic] Dawn asked what we want [sic] to speak to her about.' " Once Reffett and Quanda were inside, she told him that defendant stayed there two or three times a week. She added that, after the incident with the woman who wanted to buy "weed, " she asked defendant whether he knew the stranger and whether he was "selling anything out of the house." Quanda related that "she became suspicious at that point."
¶ 9 Rossow testified as follows. When Reffett got to the side door, Rossow was standing almost directly behind him, just off to the left, no more than two feet away. Rossow's clothing included a vest marked "Police" and a mask. Berke and Veruchi were also standing near Reffett. Reffett knocked on the door. Defendant answered. Reffett identified himself and asked "if [the officers] could speak to him." Defendant told him to hold on a second, but within moments Quanda came to the door. Reffett again identified himself and asked "basically if we could speak to her for a moment." She asked "what we wanted to speak to her about, " and he explained that "we" had gotten a "narcotics complaint at that residence and want [sic] to speak to her about that." Quanda said, " 'Please come in.' " Rossow did not recall whether Quanda actually used the term "we." However, ...