Appeal from Circuit Court of Jersey County No. 11CF155 Honorable Eric S. Pistorius, Judge Presiding.
JUSTICE TURNER delivered the judgment of the court, with opinion. Justices Knecht and Holder White concurred in the judgment and opinion.
¶ 1 In September 2011, the State charged defendant, Timothy Ray Woodrome, with single counts of theft and criminal damage to property. In March 2012, defendant filed a motion to suppress evidence, which the trial court granted.
¶ 2 On appeal, the State argues the trial court erred in granting defendant's motion to suppress evidence. We reverse and remand for further proceedings.
¶ 3 I. BACKGROUND
¶ 4 In September 2011, the State charged defendant by information with one count of theft (720 ILCS 5/16-1(a)(1)(A) (West 2010)), alleging he knowingly exerted unauthorized control over property of AT&T, being copper wire having a total value in excess of $500, with the intent to permanently deprive AT&T of the use of the property. The State also charged defendant with one count of criminal damage to property (720 ILCS 5/21-1(1)(a) (West 2010)), alleging he knowingly damaged property of AT&T, being telephone wire, with the damage being in excess of $300 but not in excess of $10, 000. Defendant pleaded not guilty.
¶ 5 In March 2012, defendant filed a motion to suppress evidence. Defendant claimed the State intended to introduce into evidence items seized by police in the execution of a search warrant pertaining to his residence at 10783 Chestnut Lane in Godfrey. Defendant stated the affidavit and complaint for search warrant filed by Sheriff's Deputy Mark Marshall set forth three matters in support of the issuance of the warrant, including that (1) the police received information regarding an individual burning plastic-encased copper wire at defendant's residence and no identity as to the informant and his/her reliability was provided; (2) the police had knowledge of copper wire thefts within the same area in the previous three days; and (3) the affiant, Deputy Marshall, while on defendant's property earlier in the day in question observed a small burn pile containing plastic-encased copper wire and several sections of telephone cable on the floor of defendant's detached garage. Defendant claimed Deputy Marshall did not have a warrant or defendant's consent to search when he made the observations prior to preparing his affidavit. Thus, the observations made by Deputy Marshall in his affidavit and complaint for search warrant were a product of his prior unlawful entry and insufficient for the issuance of a search warrant based upon probable cause.
¶ 6 In May 2012, the trial court conducted a hearing on the motion to suppress. Deputy Marshall testified to his affidavit and complaint for a search warrant, the search warrant, and the evidence/property report. He agreed the affidavit did not indicate the identification of the person who provided the information of an individual burning plastic-encased copper wire. He arrived at defendant's residence at 12:34 p.m. to investigate. From the roadway, he could see smoke from the fire approximately 100 feet from his position but could not see what was in the fire. Sergeant Tim Chappell arrived at the same time as Marshall. Defendant was out in the yard and quickly went inside after Chappell called his name. Marshall proceeded to the front door of the residence. Thereafter, "we went around the residence, knocking on the doors, trying to get somebody to come back to the door, makin[g] sure he wasn't climbing out the back window." During this check, Marshall observed telephone cable next to the residence. Chappell then advised Marshall to look in the burn pile. Upon approaching the fire, he could see copper wire therein. Marshall looked through an open door in the garage and observed telephone cables that matched the description of the plastic-encased copper wire. Marshall testified he later motioned an AT&T employee, who had been waiting down the street, to defendant's property to identify the wire. Marshall stated defendant never gave his consent to allow anyone to be on the property. Marshall used the information obtained from his observations to secure the search warrant.
¶ 7 On cross-examination, Deputy Marshall testified there had been several copper wire thefts in the vicinity during that particular time period. He stated he saw the fire while off of the premises. As he pulled into the driveway, he observed defendant turn away and go inside the residence. Marshall eventually left the scene to take defendant to jail at 12:59 p.m. and to secure the search warrant.
¶ 8 On redirect examination, Marshall stated he went to the front door of the residence but had not observed any copper wire. As he walked around the side of the house to make sure no one was attempting to exit, he observed copper wire. After he looked in the burn pile, he looked in the open door of the garage and observed copper wire in plain view.
¶ 9 Sergeant Tim Chappell testified he received a phone call from someone wishing to remain anonymous who was aware of copper wire having been stolen in the area and seeing the type of telephone cable that was stolen. Looking to investigate the copper wire thefts, Chappell arrived at defendant's residence at approximately 12:30 p.m. and observed him walk toward the residence. Knowing defendant from prior law-enforcement contacts, Chappell called out "Hey, Tim, " but defendant entered the residence without acknowledging the statement. Chappell knocked on the front door but did not receive a response. He proceeded to the side of the house and knocked on another door. He observed telephone wire and asked Deputy Marshall to look in the burn pile, which was approximately 25 to 30 yards from the house. He later told Marshall to transport defendant and then secure a search warrant. Chappell called the AT&T employee, who had been servicing the area involved with the stolen wire, and asked him to come to the property and look at the wire.
¶ 10 In December 2012, the trial court issued its written order and found, in part, as follows:
"Based upon the anonymous phone call, Deputies Marshall and Chappell traveled to defendant's property where smoke could be seen from a fire, which was approximately 100 feet from the roadway, but the material that was being burned could not be identified from that location. Officer Marshall stated that it was only when he was within 20 feet of the fire that he could tell it was plastic encased copper wire. Finally, the Sheriff's department deputies were aware that ...