No. 5-95-0889
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 95-CF-1392
SHAWN CARTER, ) Honorable
) Charles V. Romani,
Defendant-Appellant. ) Judge, presiding.
_________________________________________________________________
PRESIDING JUSTICE HOPKINS delivered the opinion of the court:
Defendant, Shawn Carter, appeals from his conviction, after a
stipulated bench trial, of the offense of unlawful production of
cannabis sativa plants. On appeal, defendant argues that the trial
court erred in denying his motion to suppress evidence. We find
that the court should have granted the motion to suppress.
Accordingly, we reverse and remand for a new trial.
I. ISSUE ON REVIEW
The facts and precise issue presented by this appeal are
apparently unique in Illinois and United States Supreme Court
reported decisions. We consider whether the fourth amendment to
the United States Constitution and the Illinois Constitution,
article I, section six, require the suppression of evidence
observed in a warrantless search of a residence where the police
illegally entered the residence prior to obtaining a search warrant
and where the same police stayed inside the residence for over two
hours waiting for the residents to return and refuse consent to
search before the officers decided to apply for a search warrant.
Under the circumstances of this case, we believe that both Federal
and State constitutional law require that the evidence seized must
be suppressed.
II. FACTS
The following facts are not disputed. Defendant and his
mother, Jo Ann Landers, were both arrested in their home on the
evening of July 17, 1995. When they arrived home from work, at
least two Collinsville policemen were in the apartment defendant
and his mother shared. The police did not have arrest or search
warrants. After the residents refused to consent to a search of
the apartment, the police decided to apply for a search warrant,
which was issued at 11:35 p.m. Defendant's mother was eventually
dismissed from the case. On August 2, 1995, defendant filed a
motion to suppress the evidence seized by the police. The trial
court denied the motion to suppress, relying on Murray v. United
States, 487 U.S. 533, 101 L. Ed. 2d 472, 108 S. Ct. 2529 (1988),
and People v. Bielawski, 255 Ill. App. 3d 635 (1994).
The following evidence was presented at the hearing on
defendant's motion to suppress. Defendant testified in his own
behalf that he returned home to his apartment at approximately 5:30
p.m. after work on July 17, 1995. When he arrived, two uniformed
police officers were waiting inside the apartment. He did not
consent to their entry, and they did not have a search warrant.
Defendant rested.
The State called Collinsville police officer Scott Williams,
who testified that on July 17, 1995, at approximately 3:15 p.m., he
was dispatched to an apartment building in Collinsville. The
reason for the dispatch was a telephone call from a maintenance man
for the building, who reported that he discovered marijuana plants
growing in an apartment when he went inside to fix a leak.
Williams testified that the maintenance man showed him the window
of the apartment where the marijuana was growing. Williams
testified that he stood outside the apartment and looked through
the window into the kitchen. According to Williams, he was able to
see, "sitting in plain view, on top of the microwave, *** a full
tray of marijuana plants." Williams and the other officer with
him, Sergeant Edward Delmore, learned the names of the occupants of
the apartment from the maintenance man.
On cross-examination, Williams testified that the maintenance
man told the officers that he had been in the apartment about 15
minutes before the officers arrived and that no one was home at
that time. At 3:30 p.m., the maintenance man unlocked the
apartment door at the officers' request. The officers went inside
the apartment and checked every room and every closet and under the
beds but found no one home. After finding no one home, the
officers stayed inside the apartment to wait for the occupants to
return. Williams testified that he sat at the kitchen table while
he waited and that he looked through the mail to check for the
names of the residents. He also found a "High Times" magazine that
he picked up and looked at to see whose name was on the mailing
address, but he testified that he did not look through any drawers
and that he did not "recall going through any other items" in the
apartment. According to Williams, defendant arrived home at 5:50
p.m., after the two officers had been waiting inside defendant's
apartment for 2 hours and 20 minutes.
Williams testified that when defendant arrived, they did not
arrest him at first but instead asked for his consent to search the
apartment. He refused.
While the officers continued to wait in the apartment for
defendant's mother to return from work, Williams testified that two
additional officers came to the apartment, one to replace Williams,
who was scheduled to go off duty at 6 p.m., and another, Detective
Reis, who interviewed Williams to get information to apply for a
search warrant. Williams testified that defendant's mother arrived
home at 7:05 p.m. on July 17, 1995, and that Sergeant Delmore made
the decision to apply for a search warrant after defendant and his
mother both refused to consent to the search.
Williams testified that he gave the following information to
Detective Reis so that a complaint for search warrant could be
prepared:
"A. We secured the apartment. Mr. Carter arrived.
We interviewed him, asking him for consent. He refused.
His mother returned, refused consent. And we decided
that obviously, if we didn't have consent to search, we
weren't going to search the apartment. So we decided to
get the search warrant."
Williams testified in redirect examination that he had
knowledge of all of the facts alleged in the affidavit for search
warrant, absent his entry into defendant's apartment. The
affidavit for search warrant was not signed by Williams but by
Detective Reis, who did not testify at the hearing on the motion to
suppress.
Sergeant Delmore's testimony essentially tracked that of
Officer Williams. However, Delmore described his initial observa-
tion of the marijuana plants as follows:
"Q. Now, Sergeant Delmore, did you go outside of
the premises to see if you could observe the cannabis
plants through a window?
A. We actually walked down to the apartment, and as
the maintenance man was opening the door to the apart-
ment, we were able to see the cannabis plants from the
outside.
Q. Okay. Now forgetting about the maintenance man
opening the door.
A. Okay."
Sergeant Delmore went on to testify that he observed the marijuana
plants from outside the apartment, while standing either on a
sidewalk or on the parking lot behind the building.
Delmore testified that he was in and out of the apartment
while Officer Williams waited inside for defendant to return home,
and that he did not take any steps to secure a search warrant after
defendant arrived home, but instead, he waited for defendant's
mother to return to the apartment. When she came home at 7:05
p.m., Delmore asked her to consent to the search, but she refused.
Delmore told her that if she refused, he would get a search
warrant. Delmore testified that he decided to apply for a search
warrant after defendant and his mother both refused to consent to
a search.
Delmore testified that 23 marijuana plants, ranging in height
from three to six inches, were seized from defendant's apartment
after the search warrant was finally issued.
On November 15, 1995, the trial court entered an order denying
defendant's motion to suppress. In that order, the court found
that defendant based his motion on the theory that the seizure of
the cannabis plants was unlawful as the "fruit" of the officers'
prior illegal entry into the apartment and, therefore, was
suppressible. The court stated that it had reviewed the search
warrant and found it "clear" that the affidavit supporting the
warrant "was predicated upon the viewing of cannabis plants by the
officers from outside the apartment through the window." The court
found that the warrant did not reveal that the officers had entered
the apartment. We note that the complaint for search warrant, the
affidavit supporting that complaint, and the search warrant are not
included in the record on appeal. However, the record includes
sufficient details from which we can determine the issues present-
ed, so that the appellant's failure to include these items on
appeal does not affect our decision.
The trial court stated that the United States Supreme Court
adopted the independent source rule in Murray, 487 U.S. 533, 101 L.
Ed. 2d 472, 108 S. Ct. 2529. The court stated that under the
independent source rule, "a search pursuant to a warrant is
independent of a prior illegal entry if the illegality did not
influence the decision of the police to seek a warrant and the
information obtained via the illegal intrusion did not affect the
magistrate's decision to issue the warrant." The court also found
that the independent source rule has been adopted in Illinois in
Bielawski, 255 Ill. App. 3d 635. Applying the independent source
rule to the case before it, the court ruled:
"[T]he entry to the apartment did not influence the
decision of the officers to seek a warrant, as the
warrant was based upon the observations of the officers
prior to the entry of the apartment. Furthermore, the
entry by the officers could not have influenced the
judge's decision to issue the warrant as the judge was
unaware of the entry, and the warrant was issued by the
judge based on the observations of the officers prior to
the officers['] entry into the apartment. Therefore,
under the independent source doctrine, the entry, legal
or not, does not affect the reasonableness of the seizure
of the cannabis plants."
The court denied defendant's motion to suppress evidence and his
posttrial motion. Defendant appealed from both orders.
III. ANALYSIS
A. PRELIMINARY STATEMENT AND STANDARD OF REVIEW
As we have previously stated, we have found no case reported
in Illinois or considered by the United States Supreme Court that
deals with the same or similar facts presented in this case. There
are certain cases that deal with some of the facts of this case,
but none that have all of the pertinent facts with which we
contend. "It is well settled that the precedential scope of a
decision is limited to the facts before the court." People v.
Flatt, 82 Ill. 2d 250, 261 (1980). Therefore, to the extent of the
unique facts presented for our review, this decision is a question
of first impression for which we are duty bound to follow both the
Illinois and United States Constitutions. Where precedent applies
and is relevant, we follow that precedent.
This appeal requires us to review the trial court's decision
denying defendant's motion to suppress evidence. On review, we
must uphold the trial court's decision on the motion to suppress
unless that decision is manifestly erroneous. People v. Galvin,
127 Ill. 2d 153 (1989). Finding that the denial of the motion to
suppress was manifestly erroneous, we reverse.
B. FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION
The trial court based its decision to deny the motion to
suppress upon fourth amendment principles, as outlined by the
Supreme Court in Murray and the Illinois second district appellate
court in Bielawski. In Murray, the Supreme Court considered a
factual scenario that is similar in some respects to the facts of
this case and dissimilar in other respects. In Murray, law
enforcement officers illegally searched a warehouse without a
search warrant. The officers observed bales of marijuana in the
warehouse, left, and applied for a search warrant based only upon
observations they made and facts they learned without illegally
entering the warehouse. After the search warrant was issued, the
officers seized the marijuana that they had observed during the
initial illegal search. Murray, 487 U.S. at 535-36, 101 L. Ed. 2d
at 479, 108 S. Ct. at 2532.
The Supreme Court remanded the case back to the United States
district court to determine the "ultimate question" presented by
the case but not answered by the district court:
"The ultimate question, therefore, is whether the
search pursuant to warrant was in fact a genuinely
independent source of the information and tangible
evidence at issue here. This would not have been the
case if the agents' decision to seek the warrant was
prompted by what they had seen during the initial entry,
or if the information obtained during that entry was
presented to the Magistrate and affected his decision to
issue the warrant." Murray, 487 U.S. at 542, 101 L. Ed.
2d at 483-84, 108 S. Ct. at 2536.
Murray is binding precedent upon the case at bar to the extent
that the independent source doctrine applies to all searches,
regardless of where they take place. However, we find it signifi-
cant that the Court in Murray was not presented with a search of a
home, but with a search of a warehouse. While the fourth amendment
protects people, not places (Katz v. United States, 389 U.S. 347,
361, 19 L. Ed. 2d 576, 588, 88 S. Ct. 507, 516 (1967)), a search
must still be reasonable in order to be constitutional under either
the fourth amendment or the Illinois Constitution. People v.
Price, 195 Ill. App. 3d 701 (1990).
Moreover, in Payton v. New York, 445 U.S. 573, 585, 63 L. Ed.
2d 639, 650, 100 S. Ct. 1371, 1379 (1980), the Supreme Court held:
"[T]he fourth amendment, made applicable to the states by
the fourteenth amendment, prohibits the police from
making a warrantless, nonconsensual entry into a
suspect's home for the purpose of making a routine felony
arrest or search absent exigent circumstances."
The Payton Court reasoned:
"[T]he `physical entry of the home is the chief evil
against which the wording of the Fourth Amendment is
directed.'" Payton, 445 U.S. at 585, 63 L. Ed. 2d at
650, 100 S. Ct. at 1379-80 (quoting United States v.
United States District Court for Eastern District of
Michigan, 407 U.S. 297, 313, 32 L. Ed. 2d 752, 764, 92 S.
Ct. 2125, 2134 (1972)).
See also People v. McPhee, 256 Ill. App. 3d 102 (1993).
"At the very core of the [of the fourth amendment] stands the
right of a man to retreat into his own home and there be free from
unreasonable government intrusion." Payton, 445 U.S. at 590, 63 L.
Ed. 2d at 653, 100 S. Ct. at 1382. Therefore, we base our decision
not only upon Murray, but also upon the earlier Supreme Court cases
construing the mandate and purpose of the fourth amendment. The
law firmly establishes that a person's home is entitled to greater
protection from unlawful intrusions and illegal searches than
commercial enterprises such as warehouses. People v. Bessler, 191
Ill. App. 3d 374, 379 (1989). It follows that defendant's right to
be free from a warrantless search of his home was greater than the
defendants' rights to be free from a warrantless search of their
warehouse in Murray.
In the Bielawski case, the second district appellate court
interpreted Murray as setting up a two-part test for deciding
whether a search and seizure pursuant to a warrant is independent
of the prior illegal entry:
"The [Murray] Court held that a search pursuant to
a warrant is independent of a prior illegal entry if (1)
the illegality did not influence the decision of the
police to seek the warrant; and (2) the information
obtained via the illegal intrusion did not affect the
magistrate's decision to issue the warrant." Bielawski,
255 Ill. App. 3d at 641.
The trial court in the case at bar recognized and applied
Murray's two-part test as set out in Bielawski. However, based
upon our review of the evidence, we hold that the trial court
incorrectly decided the first part of the test, whether the illegal
entry influenced the officers' decision to seek a search warrant.
The trial court stated in its order denying defendant's motion that
"the entry to the apartment did not influence the decision of the
officers to seek a warrant, as the warrant was based upon the
observations of the officers prior to the entry of the apartment."
The trial court's finding on this issue is not supported by
the record. Both officers who initially entered the apartment
testified that they did not decide to seek a search warrant until
both residents came home, found the officers inside their home, and
refused to consent to the search the officers had already conduct-
ed. It is clear from the officers' testimony that they would not
have applied for a search warrant if at least one of the residents
had consented to the search. Therefore, the trial court was
manifestly erroneous in finding that the earlier illegal entry did
not influence the officers' decision to seek a search warrant. See
Bielawski, 255 Ill. App. 3d at 641 (wherein the court found that
the first prong of the Murray independent source test was satisfied
by evidence that the officer's decision to apply for a warrant
preceded the illegal second entry).
The trial court herein found that the officers' decision to
seek a warrant was not influenced by the illegal entry. That
finding is based only upon the fact that the application for search
warrant omitted facts about and learned during the illegal entry.
We do not believe that the facts stated or omitted in the applica-
tion for search warrant are the only criteria to be used in
deciding whether the officers' decision to apply for a search
warrant has been influenced by the illegal search. The information
in the application for search warrant is more relevant to the issue
of whether the illegal search influenced the magistrate's decision
to issue the search warrant.
Not only did the trial court err in applying the two-part
independent source test set forth in Murray and Bielawski, the
court's decision also goes against the rationale of the Court in
Murray:
"The independent source doctrine does not rest upon ***
metaphysical analysis, but upon the policy that, while
the government should not profit from its illegal
activity, neither should it be placed in a worse position
than it would otherwise have occupied. So long as a
later, lawful seizure is genuinely independent of an
earlier, tainted one *** there is no reason why the
independent source doctrine should not apply." Murray,
487 U.S. at 542, 101 L. Ed. 2d at 483, 108 S. Ct. at
2535.
The evidence presented at the hearing on the motion to
suppress makes it clear that the search conducted pursuant to the
warrant is in no way independent of the earlier illegal entry and
search. If the police testimony regarding plain view is to be
believed, the police certainly had probable cause to obtain a
warrant. However, it is clear that the officers here never
considered a valid search until the residents refused to consent to
the invalid one.
Since it is clear that the officers had no intention of
obtaining a warrant until they completed the illegal search and
were unable to obtain a valid consent, the government is no more
entitled to profit from the illegal search than it would have been
if the officers' presence in the apartment had resulted in the
requested consent.
C. ILLINOIS CONSTITUTIONAL LAW
As an alternative, but equally compelling, foundation for our
holding, we find that the illegal entry into and search of
defendant's home violates Illinois constitutional law.
More than 40 years before the adoption of our current
constitution in 1970, the Illinois Supreme Court adopted the
exclusionary rule in People v. Brocamp, 307 Ill. 448 (1923). In
Brocamp, the court applied the exclusionary rule to a situation in
which the police, without a search warrant, seized evidence from
inside and outside the defendant's home. The court found it "very
clear that the defendant's constitutional rights were ruthlessly
and unlawfully violated," under both Federal and State constitu-
tional guarantees. Brocamp, 307 Ill. at 453. The court determined
that since the defendant timely moved to suppress the evidence and
return it to him, the appropriate remedy for the violation of his
constitutional rights was to suppress the evidence seized.
Brocamp, 307 Ill. at 455.
In 1960, the Illinois Supreme Court reaffirmed the exclusion-
ary rule in People v. Mayo, 19 Ill. 2d 136 (1960).
"`The Supreme Court has uniformly held that evidence
procured by an illegal search is not admissible in a
criminal prosecution and will be suppressed on motion
made in apt time--before the commencement of the trial.
*** This protection against an unreasonable search is
based on the invasion of the privacy of the individual-
-his home, office and effects ***." Mayo, 19 Ill. 2d at
139 (quoting City of Chicago v. Lord, 3 Ill. App. 2d 410,
415-16, aff'd, 7 Ill. 2d 379 (1955)).
"[From 1870 until 1970], the relevant clause of the
Illinois Constitution echoed the words of the fourth
amendment of the United States Constitution, providing
that:
`The right of the people to be secure in
their persons, houses, papers and effects,
against unreasonable searches and seizures,
shall not be violated ***.' (Ill. Const.
1870, art. II, §6.)
However, a new constitution was adopted in 1970 and
section 6 of article II [was moved to article I and] was
amended to provide as follows:
`The people shall have the right to
besecure in their persons, houses, papers and
other possessions against unreasonable search-
es, seizures, invasions of privacy or inter-
ceptions of communications by eavesdropping
devices or other means.' (Emphasis added.)
(Ill. Const. 1970, art. I, §6.)" In re May
1991 Will County Grand Jury, 152 Ill. 2d 381,
390-91 (1992).
In the Will County Grand Jury case, the supreme court stated
that a State's constitutional protection may be greater than that
of the comparable United States constitutional provision. Will
County Grand Jury, 152 Ill. 2d at 390. The court determined that
the Illinois Constitution offers greater protection against the
invasion of an individual's privacy rights than does the Federal
Constitution. Will County Grand Jury, 152 Ill. 2d at 390.
Since the Will County Grand Jury case was decided, the supreme
court has refined the rule to provide that the Illinois courts will
interpret search and seizure cases similarly to analogous United
States Supreme Court cases when the language of the two constitu-
tions is identical, and that Illinois should craft its own rules
for constitutional questions only when the case involves provisions
of the Illinois Constitution not found in the United States
Constitution. The court went on to state, however, that regardless
of which constitutional analysis prevails:
"Decisions involving the exclusionary rule and the
Illinois Constitution's article I, section 6, require
that we carefully balance the legitimate aims of law
enforcement against the right of our citizens to be free
from unreasonable governmental intrusion." People v.
Tisler, 103 Ill. 2d 226, 245 (1984) (citing People v.
Smith, 95 Ill. 2d 412, 422 (1983)).
Therefore, our decision is supported not only by United States
Supreme Court law, but even more so by Illinois case law. We hold,
first, that the seizure in this case does not comply with the
independent source doctrine as outlined in Murray and Bielawski,
and that the trial court erred in deciding otherwise. However, we
also find that the evidence must be suppressed under Illinois
constitutional principles, as stated in case law both before and
after the adoption of the current, 1970 constitution.
Considering the facts of this case under the analysis set
forth in Brocamp, the manner in which evidence was seized from
defendant's home violated his constitutional rights, even after the
warrant issued. The officers' actions in unlawfully entering
defendant's home are at least as constitutionally infirm as the
warrantless search conducted in Brocamp. We find the illegal entry
into defendant's home especially unreasonable and unconstitutional
since the officers entered the apartment at a time when they could
have been applying for a warrant, 3:30 on a Thursday afternoon. In
addition, the officers testified that after they conducted the
search in which they discovered the marijuana, which was after they
supposedly saw it from outside the apartment, they waited inside
defendant's home for over two hours so that they could seek the
residents' permission to search.
If a person's property can be seized and used as evidence
against him in a court of law under these circumstances, "then the
constitution guaranteeing such rights is a mere nullity." Brocamp,
307 Ill. at 453. To find this illegal entry and search of
defendant's home cured by the subsequent issuance of a search
warrant would take an unprecedented and uncalled for stretch of the
imagination and common sense. We decline to do so. Under every
notion of reasonableness, the procedure utilized by the police in
this case invaded defendant's privacy and was patently unreason-
able, and as such, the evidence seized must be suppressed. See
Mayo, 19 Ill. 2d at 139.
Finally, in weighing law enforcement's legitimate aims against
the right of defendant to be free from unreasonable searches and
seizures, we find no legitimate law enforcement aim to weigh. If
the officers had any intention of preserving defendant's constitu-
tional rights, they would have applied for a search warrant as soon
as they confirmed the informant's tip that defendant was growing
marijuana inside his apartment. The State did not argue that the
search was justified by any other exception, such as exigent
circumstances. Nor does the State argue that the officers' conduct
was supported by any legitimate aim, but only that the second
search, after the warrant was issued, was independent of the
earlier illegal entry and search. We have already explained why
such an assertion cannot be supported by this record.
IV. CONCLUSION
For all of the reasons stated, the order of the trial court
denying defendant's motion to suppress evidence is reversed, and
the case is remanded for a new trial or other proceedings consis-
tent with this opinion.
Reversed and remanded.
GOLDENHERSH, J., and CHAPMAN, J., concur.
___________________________________________________________________________
___________________________________________________________________________
Opinion Filed: November 8, 1996
___________________________________________________________________________
Justices: Honorable Terrence J. Hopkins, P.J.
Honorable Richard P. Goldenhersh, J., and
Honorable Charles W. Chapman, J.,
Concur
___________________________________________________________________________
Attorney James K. Donovan, Cueto & Cueto, Ltd., 7110 W. Main Street,
for Belleville, IL 62223
Appellant
___________________________________________________________________________
Attorneys Hon. William Haine, State's Attorney, Madison County
for Courthouse, 157 N. Main Street, Edwardsville, IL 62025
Appellee
Norbert J. Goetten, Director, Stephen E. Norris, Deputy
Director, Rebecca Sanders, Staff Attorney, Office of the
State's Attorneys Appellate Prosecutor, Rt. 15 East, P.O.
Box 2249, Mt. Vernon, IL 62864
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