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People v. Franklin

Court of Appeals of Illinois, First District

August 24, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
MARLON FRANKLIN, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, Illinois, No. 11 C6 60259 Honorable Luciano Panici Judge Presiding.

          JUSTICE MASON delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Justice Lavin concurred in the judgment and opinion.

          OPINION

          MASON JUSTICE

         ¶ 1 Defendant Marlon Franklin was charged with eight counts of aggravated unlawful use of a weapon ("AAUW") and six counts of unlawful use of a weapon by a felon ("UUWF"). The jury convicted Franklin of two counts of UUWF and the trial court later sentenced him to two concurrent six-year terms of imprisonment. He appeals, challenging the sufficiency of the evidence to demonstrate his possession of the firearms and the trial court's denial of his motion to suppress evidence. Because we find that the motion to suppress should have been granted, we reverse.

         ¶ 2 On March 5, 2011, East Hazel Crest police received a call regarding a theft of cash from room 106 of the Super 8 Motel located at 17220 South Halsted. Officer Kenneth Vallow and his partner, Officer Hankins, went to room 106 and met Jasmine Ross, the victim of the theft. Ross described the perpetrator as a 26-year-old, 6'3'', 300-pound black male going by the nickname "DB." Ross told the officers they could find "DB" in room 301 and that "DB" was "known to be armed." As the officers approached room 301, they encountered Franklin leaving the room. After the officers identified themselves, Franklin told the officers that room 301 was rented in his name. When asked if he was known as "DB, " Franklin told the officers that DB was in his room.

         ¶ 3 Franklin used his keycard to let the officers into the room. Vallow used a towel to prop open the door. Once inside, the officers observed a large man matching Ross's description sleeping on one of the two beds. The man woke up and the officers began questioning him. Meanwhile Franklin remained standing by the window. On the nightstand between the two beds, Vallow observed a clear plastic bag containing a green, leafy substance, which appeared to be cannabis, and handed the bag to Hankins.[1] Vallow did a quick search of the room and the bathroom and noticed nothing was out of place in the bathroom. In particular, Vallow looked at the ceiling tiles in the bathroom, as experience told him that contraband or weapons were often concealed there. The ceiling tiles appeared undisturbed.

         ¶ 4 Hankins radioed for a drug sniffing dog. Vallow observed that DB (later identified as David Lathan) was becoming "very nervous" and "tense" and that Franklin also became fidgety. DB then jumped over the bed, pushed past the officers, and ran out of the open door of the room. DB ran down the stairs and proceeded to carjack a vehicle from two individuals who were leaving the parking lot. Hankins and Vallow both gave chase, leaving Franklin alone in the room.

         ¶ 5 A few minutes later, Vallow realized that Franklin was still in the room and returned to room 301. Vallow walked through the still propped open door to see Franklin exiting the bathroom with a "surprised" expression on his face. Franklin did not tell Vallow he was not permitted to enter the room or ask him to leave. Upon examining the bathroom, Vallow observed that the ceiling tiles had been pushed up two inches. Vallow handcuffed Franklin, had him sit on the bed, and inspected the ceiling tiles in the bathroom. Standing on the toilet, Vallow reached up and felt two plastic bags that he believed contained guns. At that point Vallow did not pull the bags down. Vallow brought Franklin down to his squad car, secured him in the back seat, and went back to the room, recovering from above the bathroom ceiling two plastic bags containing a Lorcin .38 caliber automatic weapon, an extra ammunition clip for that weapon, a Hi-Point .9 millimeter firearm with a full clip, and $153 in cash. The cash was returned to Ross and the guns were inventoried. Vallow never observed Franklin in the bathroom or reaching up to the ceiling tiles.

         ¶ 6 Based on this evidence, the trial court denied Franklin's motion to quash arrest and suppress evidence. The court ruled that the presence of suspect narcotics in plain view was probable cause for Franklin's arrest and that Vallow had probable cause to search the ceiling tiles because of their notable change in the three-minute period during which Vallow left the room.

         ¶ 7 The matter proceeded to trial and the parties stipulated to Franklin's status as a felon. Vallow's testimony was consistent with his prior testimony on the motion to suppress.

         ¶ 8 Franklin's motion for a directed verdict was denied and the defense rested without calling any witnesses or introducing any other evidence. The jury found Franklin guilty on both counts of UUWF.

         ¶ 9 Franklin's motion for a new trial and his motion to reconsider the ruling on his motion to quash and suppress were denied. The court sentenced Franklin to six years' incarceration.

         ANALYSIS

         ¶ 10 Franklin raises a number of issues relating to the sufficiency of the State's evidence, the trial court's response to a question from the jury and the claimed ineffective assistance of trial counsel. But because it is dispositive, we need only address Franklin's contention that the trial court erred in denying his motion to suppress evidence. On this issue, Franklin first contends that Vallow was not justified in re-entering the room after he left to pursue Lathan so that Vallow's "second entry" into the room was without Franklin's consent and not justified by any other exception to the warrant requirement. Franklin further contends that even if Vallow's re-entry is deemed consensual, his search of the area above the bathroom ceiling tiles could not be justified as a search incident to Franklin's arrest or by exigent circumstances. The trial court rejected these contentions, finding that Franklin's original consent encompassed Vallow's return to the room and that Vallow had probable cause to ...


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