People v. Benavidez

2021 IL App (2d) 190603-U

• Court: Appellate Court of Illinois
• Decided: June 23, 2021
• Docket: 2-19-0603
• Status: Unpublished

Opinion

2021 IL App (2d) 190603-U No. 2-19-0603 Order filed June 23, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 14-CF-1921 ) THOMAS A. BENAVIDEZ, ) Honorable ) Donald M. Tegeler Jr., Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE BRIDGES delivered the judgment of the court. Justices Hudson and Birkett concurred in the judgment.

ORDER

¶1 Held: Defendant’s consent to a search of his home was voluntary despite the officers’ prior entry into the home. That entry was justified because defendant’s wife needed to check on the young children in the home, and the officers needed to make sure that defendant’s wife would not hide or destroy the contraband that defendant had admitted was in the home.

¶2 Following a stipulated bench trial, defendant, Thomas A. Benavidez, was convicted of

possession with the intent to deliver more than 2000 grams but not more than 5000 grams of any

substance containing cannabis (720 ILCS 550/5(f) (West 2014)). He appeals, contending that the

trial court erred by denying his motion to suppress evidence found during a search of his home. 2021 IL App (2d) 190603-U

He argues that, although he ostensibly consented to the search, that consent was involuntary where

the police had already begun illegally searching the home. We affirm, holding that the trial court

did not err in finding that defendant’s consent to search was valid.

¶3 I. BACKGROUND

¶4 Defendant was charged after Kane County sheriff’s deputies found cannabis in his truck

after a traffic stop and later found a larger amount in his home. Defendant moved to suppress the

evidence. His motion argued that there were no grounds for the traffic stop, that the subsequent

search of the truck was not based on probable cause, and that defendant’s consent to search his

home was involuntary.

¶5 The following evidence was adduced at a hearing on the motion. Defendant testified that,

on November 20, 2014, he visited his friend Jason Williams at his house in the Valley View

subdivision in unincorporated Kane County. Defendant gave Williams a bag of cannabis. They

“chatted for a little a bit,” and defendant left in his Honda Ridgeline.

¶6 However, the Kane County Sheriff’s Department had received an anonymous tip about

Williams and had his home under surveillance. As defendant drove away, two marked Kane

County sheriff’s vehicles followed him. The deputies pulled defendant over as he turned onto Red

Gate Road.

¶7 Then-Sergeant Ron Hain testified that he paced defendant’s vehicle to gauge its speed and

found that it was traveling 54 miles per hour in a 45-mile-per-hour zone. He initiated a traffic stop,

approached defendant’s vehicle, and obtained his license and insurance information. Hain testified

that he could smell burnt cannabis in the vehicle. He ordered defendant out of the vehicle and

searched his pockets, finding cash and a cell phone. He then searched the vehicle, where he found

a bag of cannabis.

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¶8 The deputies initially believed that defendant had bought cannabis from Williams.

However, they gradually began to suspect that defendant was Williams’ supplier. In any event,

Hain put defendant in the back of his squad car and drove to Williams’ house, where a search was

in progress. Deputies found cannabis in Williams’ house, and Williams gave a statement

implicating defendant. Defendant then admitted to Hain that he had cannabis at his house.

Defendant testified that he was handcuffed at this point. Hain testified that he was not.

¶9 Hain then started driving toward defendant’s house. During the trip, Hain repeatedly asked

defendant whether he would consent to a search of his house. According to Hain, defendant never

definitively said that he would not consent, but said that he wanted to consult with his wife first.

Defendant testified, however, that he explicitly refused consent.

¶ 10 Deputies Terrance Hoffman and Justin Douglas also drove to defendant’s home. Upon

arrival, they went to the house and returned with defendant’s wife, Andrea. Hain opened the door

of the squad car so that defendant and Andrea could talk. The deputies gave them some “space”

and were not actively listening to the conversation. However, defendant and Andrea asked several

questions.

¶ 11 At this point, the various accounts of the incident diverge somewhat and we summarize

them as follows. Hain testified that defendant asked him what would happen if he would not

consent to a search. Hain replied that he would get a search warrant. Defendant and Andrea were

taking a long time to decide, conversing for as long as 15 minutes. Because they were taking so

long, Hain began filling out an application for a search warrant.

¶ 12 Hain was concerned because Andrea had young children in the house and the deputies had

information that drugs were also in the house. Accordingly, Hoffman and Douglas went with

Andrea into the foyer of the house “to check on the kids and to make sure there was nobody else—

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no other adults in the house potentially destroying evidence.” The three were just inside the home

when defendant said that he would sign a consent to search. Defendant then signed the form.

¶ 13 On redirect examination, Hain reiterated that the deputies returned to the house with

Andrea to check on the children and ensure that there were no other adults present who could be

destroying evidence. Hain said that he made clear to defendant the purpose of the deputies’ entry.

¶ 14 Defendant, however, testified that he again explicitly refused consent, telling the deputies

that they would need to get a warrant. Defendant testified that Hain asked him if he were “sure”

he would not consent to a search. According to defendant, Hain told him that if he consented the

deputies would not disturb his children, turn his house “upside-down”, or arrest him that night.

¶ 15 Defendant heard a deputy tell Andrea that she would have to remove her children from the

house. Andrea entered through the garage door, which defendant found odd since the front door

was open. He then saw the deputies going through her car. He ultimately signed a consent form

because, he said, “you guys are already inside the house.” He estimated that the deputies had been

in the house for between three and five minutes at that point.

¶ 16 Hoffman testified that he overheard defendant say that the deputies would need to get a

warrant. At that point, Hain began to type up a search warrant application. Hoffman advised

Andrea that they would need to walk through the residence with her to verify that no other adults

were present who could destroy evidence. He, Douglas, and Andrea entered through the front door.

They were still in the foyer, within five feet of the front door, when Hain notified them that

defendant had signed a consent form. Defendant then walked to the basement and unlocked a

storage area in which the deputies found cannabis, drug paraphernalia, digital scales, a money

counter, and packaging material.

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¶ 17 Andrea testified that she and defendant informed the deputies that they could not search

without a warrant. The deputies informed her that she would have to leave the premises with her

children. Hain told her that she would have to open the garage, so she opened the garage door. The

deputies said that they needed to search her car before she could leave with the children. She

agreed, and the deputies searched the car. She then went into the house accompanied by three

deputies. One or two went toward the kitchen and one moved toward the living room. After 10 to

15 minutes, the deputies informed her that her husband had given them consent to search.

¶ 18 At the conclusion of the evidence, the parties argued their respective positions. At the end

of defense counsel’s argument, the following colloquy occurred:

“THE COURT: Do you agree–let’s go to the house.

Let’s assume I find everything for argument’s sake and we go to the house.

MR. DIXON [(DEFENSE COUNSEL)]: Okay.

THE COURT: Do you agree that, taking the facts as the State has them, that Hain

said, fine, you know, we just want to—we’re going to get a search warrant basically and

sent two police officers out to do a sweep of the house. Is the sweep, although they don’t

do a complete sweep, I know, but actually going to do a sweep of the house before the

warrant is executed, do you agree that that is acceptable practice or is that illegal?

MR. DIXON: Your Honor, I think they could do the sweep. I think, quite frankly,

the practice is that they keep them out of the house.

THE COURT: Which they already.

MR. DIXON: Which they already are. If they’re allowing her to go back in—

THE COURT: Well, all we know is the wife and husband. We don’t know who

else is in the house.

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MR. DIXON: Right. We don’t know who else is in the house. I think at that point

you’re not doing a sweep of the house because people are outside of the house. There’s

nobody there to destroy the evidence that they’re aware of. They haven’t gone in there. So

I don’t think they can go in to find out if there’s somebody in there that could destroy the

evidence without a warrant and without consent.”

¶ 19 The trial court denied the motion to suppress. The court specifically found that Hain had

reasonable grounds for the traffic stop, that the odor of burnt cannabis gave Hain probable cause

to search defendant’s vehicle, and that defendant’s consent to search his home was voluntary, not

the result of threats or coercion. The court determined that defendant was not handcuffed when he

gave consent.

¶ 20 The matter proceeded to a stipulated bench trial. The parties stipulated to (1) the testimony

adduced at the suppression hearing, (2) Williams’ statement that defendant had given him a half-

pound of cannabis, (3) pictures of the evidence recovered from defendant’s home, and (4) the

results of forensic testing showing that a bag recovered from defendant’s truck contained 27.5

grams of cannabis and those bags recovered from defendant’s home contained 2660 grams of

cannabis.

¶ 21 The court found defendant guilty of possession with the intent to deliver 2000 grams or

more but not more than 5000 grams of cannabis. The court sentenced defendant to court

supervision. Defendant filed a posttrial motion, arguing that the court erred in denying his motion

to suppress. The court denied the motion, and defendant timely appealed.

¶ 22 II. ANALYSIS

¶ 23 On appeal, defendant argues that the deputies’ entry into the house with Andrea was itself

an illegal entry and search. He further contends that this illegal entry and search, coupled with

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additional circumstances, rendered his consent to search involuntary. The State responds that the

entry was valid either due to exigent circumstances or as a “protective sweep” and that, under the

totality of the circumstances, defendant’s consent was valid.

¶ 24 Before turning to the merits, we consider some preliminary matters. Initially, we note that

the issue defendant raises on appeal is different from those he raised in the trial court. The motion

to suppress and the written arguments submitted in defendant’s supporting memorandum focused

on the validity of the initial traffic stop and the subsequent search of defendant’s vehicle. The

motion further contended that defendant’s consent to search his home was involuntary due to the

length of time he was detained, Hain’s repeated attempt to convince him to consent, and the

perceived threat to ransack his house and arrest him if he refused. Not until the trial court raised

the issue did defendant argue that the deputies’ prior entry was illegal or that the entry tainted his

consent.

¶ 25 Defendant did testify that he told Hain that he would just sign “because you guys are

already inside,” and defense counsel did point out in oral argument that defendant signed the

consent after the deputies were already in the house. Under these circumstances, we do not find

the issue forfeited but note that, because the issue was not extensively litigated below, the pertinent

record is somewhat sparse.

¶ 26 The State argues that defense counsel’s statement that “they could do the sweep” forfeited

the issue under the doctrine of invited error. See In re Detention of Swope, 213 Ill. 2d 210, 217

(2004) (party cannot complain of error to which that party consented). We disagree that the issue

was forfeited, given counsel’s subsequent clarification that he was challenging the legality of the

deputies’ entry with Andrea.

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¶ 27 The parties devote considerable effort to arguing whether the deputies’ entry was illegal,

analyzing their conduct in terms of various labels such as “exigent circumstances” and “protective

sweep.” We emphasize that the issue is only relevant to the extent that it may have vitiated

defendant’s content. There was no evidence that the deputies discovered anything incriminating

before defendant signed the consent form. Moreover, we remain mindful that the touchstone of a

fourth amendment analysis “is always ‘the reasonableness in all the circumstances of the particular

governmental invasion of a citizen’s personal security.’ ” Pennsylvania v. Mimms, 434 U.S. 106,

109 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)). Thus, our focus is not on a specific

rationale for the deputies’ actions but on whether their conduct was reasonable under the

circumstances.

¶ 28 Turning to the merits, defendant contends that the deputies’ entry was not authorized by

exigent circumstances or as a “protective sweep.” The fourth amendment guarantees “[t]he right

of the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures.” U.S. Const., amend. IV. This generally requires a warrant supported by

probable cause. People v. Anthony, 198 Ill. 2d 194, 201-02 (2001). The warrant requirement is,

however, subject to exceptions that are “ ‘few in number and carefully delineated.’ ” Welsh v.

Wisconsin, 466 U.S. 740, 749 (1984) (quoting United States v. United States District Court, 407

U.S. 297, 318 (1972)).

¶ 29 One such exception is the existence of exigent circumstances. Such circumstances have

been found in only a few types of situations, including the hot pursuit of a fleeing felon, a threat

to the officers’ safety, and the potential destruction of evidence. Id. at 749-50. “If the destruction

of narcotics is the primary motivation for the warrantless entry, the police ‘must have particular

reasons to believe that the evidence will be destroyed’ before exigent circumstances will arise.”

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People v. Hassan, 253 Ill. App. 3d 558, 572 (1993) (quoting People v. Patrick, 93 Ill. App. 3d 830,

833 (1981)).

¶ 30 A protective sweep is another exception to the warrant requirement. Maryland v. Buie, 494

U.S. 325, 331-33 (1990). A protective sweep is a quick and limited search of premises, typically

incident to an arrest, conducted to protect the safety of police or others and narrowly confined to

a cursory visual inspection of places where a person might be hiding. Id. at 327. A sweep lasts

only so long as necessary to dispel the reasonable suspicion of danger. Id. at 335-36. As with

exigent circumstances based on the potential destruction of evidence, the officers must be able to

articulate specific facts leading them to believe that someone was present who posed a threat either

to the officers or to the evidence. Hassan, 253 Ill. App. 3d at 573. 1

¶ 31 Defendant argues that such specific facts were lacking to support either exception when

the deputies arrived at his house. He reasons that the only other adult in the house was Andrea.

Defendant had been confined in the back of Hain’s car, so he would have been unable to alert her

that deputies were on their way intent on searching the house. Thus, she would have no reason to

attempt to destroy the evidence.

¶ 32 This is true so far as it goes. However, the situation had changed by the time the deputies

entered the house. After Andrea came outside and talked with defendant, she unquestionably knew

1 A protective sweep, as defined by Buie, refers to a search incident to arrest to look for

other occupants of the premises who might seek to harm the officers or others. See Buie, 494 U.S.

at 326. Witnesses at the hearing on the suppression motion appeared to refer to a protective sweep

somewhat imprecisely as more akin to a search based on exigent circumstances to prevent the

destruction of evidence. Defendant’s brief appears to use the terms interchangeably.

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that the deputies had detained her husband, that they were planning to search the house (either via

consent or by obtaining a warrant) and that her husband did not want the house searched. She thus

undoubtedly had, at that point, a motive to attempt to hide or destroy the evidence. 2

¶ 33 Moreover, once Andrea went outside, her children, ages one and three, were left alone

inside. Hain testified that one rationale for the deputies entering the house with Andrea was to

“check on” the children. Andrea testified that she was told that she had to remove the children

from the house. In either case, as a matter of common sense, children that young could not simply

be left inside the house unattended while the police sought and executed a search warrant. And

allowing Andrea to go back inside unescorted would have invited the destruction of the evidence.

¶ 34 In Illinois v. McArthur, 531 U.S. 330, 331-32 (2001), the Supreme Court held that the

police acted reasonably in refusing to allow the defendant to enter his home without police

accompaniment while the officers obtained a warrant. There, the defendant’s wife asked two

officers to accompany her while she removed her belongings from the defendant’s trailer. When

she had finished, she informed the officers that the defendant “ ‘had dope in there.’ ” Id. at 329.

When the defendant refused to consent to a search, one of the officers went with the defendant’s

wife to get a search warrant. The other officer, Assistant Chief John Love, told the defendant that

he could not reenter the trailer unless an officer accompanied him. The defendant subsequently

2 In his reply brief, defendant insists that even this degree of specificity was not enough.

The Buie court equated the protective sweep with a Terry stop, which requires only a reasonable,

articulable suspicion that the suspect is engaged or about to engage in criminal activity, not proof

beyond a reasonable doubt. Buie, 494 U.S. at 333 (citing Terry v. Ohio, 468 U.S. 1 (1968)).

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returned to the trailer two or three times to get cigarettes and make phone calls. Each time, Love

stood just inside the door to observe him. Id.

¶ 35 The police ultimately obtained a search warrant and discovered marijuana and drug

paraphernalia. Id. The trial court granted the defendant’s motion to suppress that evidence. The

court held that the evidence was obtained as a result of the defendant’s unlawful seizure in not

being allowed to enter the trailer unaccompanied, which would have allowed him to destroy the

marijuana before the police found it. The appellate court affirmed. People v. McArthur, 304 Ill.

App. 3d 395 (1999).

¶ 36 The Supreme Court, however, found that refusing to allow the defendant to reenter the

trailer without a police escort was a reasonable restriction. Illinois v. McArthur, 531 U.S. at 331-

32. The Court noted that the wife’s recent observation of drugs in the trailer gave the police

probable cause to obtain a warrant. Id. The Court further noted that the restriction was necessary

to prevent the evidence from being destroyed. According to the Court, the officers “could have

concluded that McArthur, consequently suspecting an imminent search, would, if given the

chance, get rid of the drugs fast.” Id. at 332.

¶ 37 The Court relied on Segura v. United States, 468 U.S. 796 (1984), in which the police

seized drugs after executing a search warrant at an apartment, but only after unlawfully entering

the apartment and occupying it for 19 hours. A majority of the Court held that the drugs were

admissible because they would inevitably have been discovered pursuant to the warrant. The

dissenters disagreed, but in describing alternative search and seizure methods, both the majority

and the dissent assumed that the officers could have legally sealed the apartment from the outside

by restricting entry while waiting for the warrant. McArthur v. Illinois, 531 U.S. at 333-34 (citing

Segura, 468 U.S. at 814, 824 n.15).

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¶ 38 The situation here was similar to that in McArthur. Based on their observations of

defendant’s visit with Williams, Williams’ statement, the cannabis found in defendant’s car, and

defendant’s admission, the deputies had probable cause to believe that defendant had cannabis in

his house. Accordingly, it was reasonable for them to secure the premises by not allowing

defendant or Andrea in without a police escort.

¶ 39 Nor is a different result warranted merely because, unlike in McArthur, the primary impetus

for Andrea’s return to the house seems to have come from the deputies themselves rather than

from defendant or Andrea. The deputies could have lawfully secured the house by removing the

occupants. This included the children, who, in any event, could not simply have been left in the

home unattended while the deputies secured and executed a search warrant.

¶ 40 There was no evidence that the deputies used the occasion as a pretext to conduct a general

search. Hoffman testified that he and Douglas remained in the home’s foyer until defendant signed

the consent. Even crediting Andrea’s testimony, one or two deputies ventured into the adjacent

kitchen and one may have started toward the living room. 3 Moreover, the deputies did not find

anything incriminating during this initial entry.

¶ 41 Vale v. Louisiana, 399 U.S. 30 (1970), which defendant cites, is dissimilar. There, after

arresting the defendant outside his home, officers announced that they were simply going to search

the house. Id. at 32-33. The Court found that this was not a valid search incident to arrest given

that the defendant was not in the house when he was arrested, and the officers had already satisfied

themselves that no one else was inside. Id. at 34.

¶ 42 Defendant contends that it does not matter if the deputies’ entry was reasonable, and thus

constitutional, because “[their] conduct communicated to the defendant that they were searching

3 The identity of the third officer Andrea referred to is not clear from the record.

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his house with or without his consent.” “Under that circumstance, the defendant’s consent was

clearly acquiescence to the officers’ apparent authority.” We disagree.

¶ 43 Defendant specifically asked Hain what would happen if defendant declined to consent,

and Hain said that he would apply for a warrant. And Hain specifically testified that he told

defendant the reasons for the deputies’ initial entry into the house, which included having Andrea

check on the children. Defendant could not simply assume that the deputies lied and that, having

repeatedly asked him for consent, allowed him to confer with Andrea, answered their questions,

and assured defendant that they would apply for a warrant if he did not consent, they would

suddenly change course and decide to search the house sans warrant anyway.

¶ 44 Defendant further contends that the deputies deliberately created the situation that the State

claims justified the entry. He contends that, if there was a risk that a person inside the house would

destroy evidence, “it was because the officers alerted that person by placing themselves outside

the house without having a warrant or consent to enter it.” Defendant argues that “Hain could have

sought a search warrant for the defendant’s house at the time of the arrest.” Defendant thus

concedes that the deputies had ample probable cause to procure a warrant at that time.

Unsurprisingly, defendant cites no authority for his novel contentions that the officers needed

permission to wait on a public street outside defendant’s house while they sought permission

(either via a warrant or consent) to search inside, or that the officers were obligated to seek a

warrant at the earliest opportunity. See Hoffa v. United States, 385 U.S. 293, 310 (1966) (“Law

enforcement officers are under no constitutional duty to call a halt to a criminal investigation the

moment they have the minimum evidence to establish probable cause.”)

¶ 45 Defendant ultimately contends that, regardless of the legality of the deputies’ initial entry,

the totality of the circumstances demonstrated that his consent was tainted. He argues that they

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held him in custody for hours, repeatedly asked for his consent to search, implicitly threatened to

ransack the house, remove his children, and immediately arrest him if he did not consent, and then

entered the house without his consent anyway.

¶ 46 A search conducted with a defendant’s valid consent but without a warrant does not violate

the fourth amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); Anthony, 198 Ill. 2d

194 at 202. The validity of a consent search depends on the voluntariness of the consent. Anthony,

198 Ill. 2d at 202. Consent must be received, not extracted “by explicit or implicit means, by

implied threat or covert force.” Schneckloth, 412 U.S. at 228. The voluntariness of the consent is

a question of fact based on the totality of the circumstances, and the State bears the burden of

proving that the consent was truly voluntary. Anthony, 198 Ill. 2d at 202. Consent is involuntary

where it is the result of official coercion, intimidation, or deception. People v. Perez, 288 Ill. App.

3d 1037, 1046 (1997). A finding that a consent to search was voluntary will not be reversed unless

it is against the manifest weight of the evidence. People v. Wall, 2016 IL App (5th) 140596, ¶ 15.

¶ 47 Relevant factors in deciding whether consent was involuntary include whether “(1) the

arrest occurred late at night; (2) the officers made the arrest while displaying weapons; (3) the

arrest was made by forcible entry or the use of force; (4) the defendant was handcuffed or kept in

close restraint; (5) the officers gained a key or similar means of entry during a search incident to

arrest for the place they were asking to search; (6) the officers used the custody to make repeated

requests for consent; (7) the custody was used for leverage, such as the officer telling the defendant

that he would be released if he consented; (8) the defendant knew or was told he had the right to

refuse consent; and (9) consent was obtained after the officer refused to grant the defendant’s

request to consult with counsel.” People v. Redman, 386 Ill. App. 3d 409, 424 (2008); 4 W.

LaFave, Search & Seizure § 8.2(b), at 65-66 (4th ed. 2004).

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¶ 48 Considering the totality of the circumstances, the trial court’s finding that defendant’s

consent was voluntary was not against the manifest weight of the evidence. “Custody alone is not

sufficient to render a consent involuntary.” Id. Although the deputies held defendant in custody

for some time, there was no evidence that doing so was a subterfuge to coerce his consent. As

defendant concedes, the deputies had probable cause to arrest him. They could have simply taken

him to jail but refrained from doing so while they pursued their investigation. The trial court found

that defendant was not handcuffed and that he was not forcibly taken into custody.

¶ 49 Although Hain apparently asked defendant repeatedly whether he would consent to a

search, the trial court found, based on Hain’s testimony, that defendant never specifically refused

to consent, but only wanted to speak to Andrea before deciding. That testimony was corroborated

by the fact that they took defendant to his house and let him speak to Andrea. The two conversed

for 10 to 15 minutes. The deputies moved away to allow them to speak privately and answered

their questions.

¶ 50 Hain testified that he truthfully told defendant that if he did not consent, Hain would apply

for a warrant. Even accepting defendant’s version of the conversation, Hain merely embellished

(by negative implication) the consequences of not consenting. According to defendant, Hain said

that if defendant consented, they would not disturb his children, turn the house “upside-down,” or

arrest him that night. These statements turned out to be true. As discussed previously, if the

deputies had had to wait for a warrant, they would have had to remove the children from the house.

After defendant signed the consent form, the deputies obtained the cannabis and paraphernalia

rather quickly, without the necessity of removing the children. If the deputies had to search for the

contraband, they would have undoubtedly disturbed the house to a much greater extent than they

did when defendant led them to the contraband. And, as far as the record shows, the deputies

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apparently kept their promise not to immediately arrest defendant. Thus, even by defendant’s own

testimony, the deputies truthfully answered his question about what would happen if he did not

¶ 51 As discussed previously, the deputies did not illegally enter the house before defendant

signed the consent. Their entry was reasonable, and its purpose was disclosed to defendant

beforehand. There was no evidence of coercion or deception as there was in People v. Purchase,

214 Ill. App. 3d 152 (1991). There, the defendant’s wife was home alone when two officers came

to her door. One of them, noting that she was pregnant, told her that if she did not cooperate, they

would put her in jail and take her baby. The officer asked her to sign a piece of paper. When she

asked what it was, he stated that it merely showed her cooperation, although it was actually a

consent to search. The officers also led the wife to believe that they had a valid search warrant. Id.

at 153.

¶ 52 In Anthony, an officer randomly approached the defendant on the street and asked if he

would consent to a search of his person. The defendant did not verbally respond, but merely

“ ‘assumed the position.’ ” Id. at 198. The court found that the defendant did not consent but

merely acquiesced to the officer’s apparent authority. Id. at 203. Here, there was no issue of

nonverbal consent; defendant signed the consent form. Accordingly, the trial court did not err in

finding that defendant’s consent was voluntary.

¶ 53 III. CONCLUSION

¶ 54 The judgment of the circuit court of Kane County is affirmed.

¶ 55 Affirmed.

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