People v. Glorioso

924 N.E.2d 1153, 398 Ill. App. 3d 975, 338 Ill. Dec. 627, 2010 Ill. App. LEXIS 107
CourtAppellate Court of Illinois
DecidedFebruary 16, 2010
Docket2-08-0271
StatusPublished
Cited by4 cases

This text of 924 N.E.2d 1153 (People v. Glorioso) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Glorioso, 924 N.E.2d 1153, 398 Ill. App. 3d 975, 338 Ill. Dec. 627, 2010 Ill. App. LEXIS 107 (Ill. Ct. App. 2010).

Opinions

JUSTICE BURKE

delivered the opinion of the court:

Defendant, Keith A. Glorioso, was charged with unlawful possession of a substance containing cocaine (720 ILCS 570/402(c) (West 2006)). He moved to suppress evidence seized under a warrant to search his house. After a hearing, the trial court ruled that the search had violated the “knock and announce” rule, but that, under Hudson v. Michigan, 547 U.S. 586, 165 L. Ed. 2d 56, 126 S. Ct. 2159 (2006), the exclusionary rule did not apply. After a stipulated bench trial, defendant was convicted and sentenced to 24 months’ probation. On appeal, he contends that, although the evidence cannot be excluded under the fourth amendment to the United States Constitution (U.S. Const., amend. IV), it should be excluded under article I, section 6, of the Illinois Constitution (Ill. Const. 1970, art. I, §6). We affirm.

On March 13, 2007, shortly before midnight, police officers executed a warrant to search defendant’s house in Round Lake Park. After being charged, defendant moved to suppress the evidence seized in the search. His motion raised a number of grounds, most of which were rejected and are not pertinent on appeal. We summarize the relevant evidence from the hearing.

Bonnie Palka, defendant’s girlfriend, testified that shortly before the police entered defendant’s home, she, three young people, and her dog were downstairs. Defendant was upstairs. Palka heard a noise from the deck and looked through a window blind. The police then pounded on the door, kicked it in, and entered the house, with their weapons drawn. The officers knocked Palka down; one officer put a gun to her head and told her not to move. Without provocation and despite her pleas, an officer shot her dog once in the face, then three times in the rear as the dog fled. Eventually, an animal control officer euthanized the dog.

Officer Daniel Kaiser testified that Officer Wayne Wilde knocked on the door and simultaneously announced that the police were present. As Wilde was knocking, Kaiser saw Palka peeking out the window; one officer yelled, “compromise,” and another officer immediately used a battering ram to force the door open. Kaiser explained that “[i]f people know we are coming up to the house it is a lot more dangerous once we get to the house,” and, further, evidence could be destroyed. However, the police had no information that anyone inside had weapons. Kaiser was the first officer to enter. He saw the dog lunge at him, baring its teeth; Kaiser jabbed at the dog with a rifle, but the dog lunged at him again, so Kaiser shot it three times in rapid succession. The dog ran away. Kaiser denied ever pushing Palka or holding a gun to her head.

Wilde testified that after he knocked on the door, as he was announcing the police presence, another officer yelled “compromise”; Wilde backed away; and an officer used a battering ram to force entry. As Wilde entered, he heard three shots in succession. Entering, Wilde saw blood on the floor and the dog under the kitchen table. Wilde testified that he never pointed a gun at Palka. Officer Gilberto Rivera, who entered the home immediately after Kaiser, testified consistently with the other officers’ accounts of the entry and Kaiser’s encounter with the dog.

After arguments, the trial court held that the search violated the fourth amendment’s knock-and-announce rule. The court found that the parties’ testimony agreed on several crucial facts, e.g., that the police knocked and announced their presence before they entered; that they entered by force immediately after one of them saw Palka looking out the window; and that, by the State’s concession, no more than two or three seconds elapsed from the knocking and announcing until the forced entry. The court initially rejected defendant’s contention that the police executed the search unreasonably or “outrageously” by shooting and fatally wounding Palka’s dog. The court credited the officers’ testimony that the dog was a threat to them; therefore, it found that they could legally use force in response (see 725 ILCS 5/108 — 8(a) (West 2006)).

In holding the search invalid, the court then reasoned as follows. Generally, police officers seeking to enter a dwelling must knock on the door and announce their identity and purpose before attempting to enter by force. See Richards v. Wisconsin, 520 U.S. 385, 387, 137 L. Ed. 2d 615, 620, 117 S. Ct. 1416, 1418 (1997). However, a “no-knock” entry is permissible if the police reasonably suspect that knocking and announcing would be dangerous or futile or would inhibit their investigation, such as by allowing the destruction of evidence. Richards, 520 U.S. at 394, 137 L. Ed. 2d at 624, 117 S. Ct. at 1421. Here, the officers forcibly entered the home no more than three seconds after knocking and announcing their presence. This short wait was unreasonable absent exigent circumstances. See United States v. Banks, 540 U.S. 31, 41, 157 L. Ed. 2d 343, 355, 124 S. Ct. 521, 528 (2003). No such exigency had been shown here. Palka’s glance out the window did not indicate that anyone would have attempted to resist the officers’ entry, and the mere possibility of violence or the destruction of evidence created no emergency.

The court then considered whether the illegality required suppressing the evidence seized in the search. Noting that our supreme court has applied the exclusionary rule to violations of the knock-and-announce rule (see People v. Condon, 148 Ill. 2d 96, 108 (1992); People v. Ouellette, 78 Ill. 2d 511, 521-22 (1979)), the court reasoned as follows. In Hudson, the Supreme Court held that the federal exclusionary rule does not apply to violations of the knock-and-announce rule. Therefore, the only issue was whether article I, section 6, of the Illinois Constitution required suppression. With limited exceptions, our supreme court has construed article I, section 6, in “lockstep” with the Supreme Court’s construction of the fourth amendment. See People v. Caballes, 221 Ill. 2d 282, 302 (2006). In the only published case considering whether the lockstep doctrine applied to knock-and-announce violations, the Fourth District stated persuasively in dictum that, if confronted with the issue, the supreme court would adopt Hudson and thus refuse to apply the exclusionary rule. People v. Chapman, 379 Ill. App. 3d 317, 325 (2007). Therefore, the court denied the motion to suppress. After he was convicted and sentenced, defendant timely appealed.

On appeal, defendant argues that the trial court erred in refusing to apply the exclusionary rule to the violation of article I, section 6, of the Illinois Constitution. Defendant urges that, under the “limited lockstep approach” (Caballes, 221 Ill. 2d at 313), the supreme court would (and ought to) extend greater remedies under the state constitution for violations of the knock-and-announce rule than has the Supreme Court under the federal constitution. Defendant relies primarily on People v. Krueger, 175 Ill. 2d 60 (1996), which held that a statute authorizing no-knock searches (725 ILCS 5/108

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Related

People v. Carter
2011 IL App (3d) 090238 (Appellate Court of Illinois, 2011)
People v. Glorioso
924 N.E.2d 1153 (Appellate Court of Illinois, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
924 N.E.2d 1153, 398 Ill. App. 3d 975, 338 Ill. Dec. 627, 2010 Ill. App. LEXIS 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-glorioso-illappct-2010.