People v. Green

367 N.E.2d 1061, 52 Ill. App. 3d 636, 10 Ill. Dec. 452, 1977 Ill. App. LEXIS 3340
Appellate Court of Illinois·Decided September 27, 1977·No. No. 76-355·Published·Cited by 4 cases

Opinion

Mr. JUSTICE BARRY

delivered the opinion of the court:

Defendant, Stonnie Green, was charged by information with two counts, one of unlawful possession of a controlled substance (heroin) and one of unlawful possession of cannabis. Defendant was found guilty after a jury trial and was sentenced to concurrent terms of three years probation with the first six months to be served in the Will County Jail for each conviction.

The testimony preserved in the record reveals that about noon on October 13,1975, the defendant was stopped in his automobile by a Joliet police officer three blocks from Green’s residence. A pat-down search was performed on defendant Green and the two passengers in his car. Ultimately Green was placed under arrest and placed in a squad car. His own car was parked by one of the police officers who retained the ignition and other keys on the key ring. Green was then driven the three blocks to his apartment at 315 East Cass Street, Joliet. The supervising police officer, Keith Kostelny, attempted to open the front door with two of the eight keys on Green’s key ring but failed to get the door unlocked. Acting pursuant to a valid search warrant for Green’s apartment, several other officers proceeded to the second floor rear of the building by way of the fire escape. Thereupon the officers entered a rear apartment in the building by kicking in the door. The rear apartment was allegedly broken into to gain access to a hallway leading to Green’s apartment with entry ultimately gained by kicking down the door to Green’s apartment. Before both forcible entries, the testimony indicated an announcement of the policemen’s office and that they had a search warrant was made. The rear apartment which was first entered belonged to Lorean Saltmarch who testified that her apartment had been messed up. Defendant’s four-room apartment was subjected to a five-hour search by several narcotics squad officers who uncovered the contraband cannabis. Green was brought from the squad car up to his apartment where he remained during the extensive search. According to defendant’s testimony, he was subject to a strip search and body cavity search while he was in the apartment. He testified that each article of his clothing including his shoes and socks were individually examined. The search uncovered nothing. While two police officers admitted that a strip search of defendant was conducted, neither officer personally observed or participated in the search.

Following the search of the apartment, Green indicated he was taken to the Will County Jail where another extensive pat-down search and two strip searches were conducted which uncovered no contraband on defendant’s person. During the final strip search conducted in the jail the police recovered three tin-foil packets which allegedly contained the contraband heroin, two of which were lying on the floor nearby defendant. Green, however, denied that the tin-foil packets had ever been on his person. The police indicated only one prior strip search occurred prior to discovering the heroin, and it was further unresolved whether defendant’s socks were turned inside out during the strip searches. After the last search the officer handed the socks to defendant and he noticed two tin-foil packets lying on the floor next to the chair where Green was sitting as defendant attempted to put the socks back on. Upon further examination of one of the socks, the police retrieved another packet from a hole in one of the socks. According to the sheriff’s deputy, Green reportedly stated, “You aren’t going to charge me with this, are you, I am in enough trouble already.” Green, however, testified that his statement to the sheriff had actuaUy been, “Jesus Christ man, I said y’aU ain’t going to do this to me, I said I am in enough trouble as it is.” His version of the statement was aUowed but he was prohibited from explaining what his statement meant because the explanation was self-serving. Defendant’s objection to a jury instruction on the weight to be given his putative admission on grounds that he made no admission was overruled by the trial court.

On appeal defendant raises four issues:

(1) Whether the trial court erred in denying defendant’s motion to suppress the cannabis seized pursuant to a search warrant because the warrant was executed with unreasonable and unnecessary force;

(2) Whether the State’s evidence to support the charge of possession of heroin was too inherently incredible to sustain a guilty verdict;

(3) Whether the trial court committed prejudicial error in allowing the State’s instruction relating to defendant’s putative admission;

(4) Whether reversal on any of the grounds set forth in the appeal on any one charge still requires a reversal and new trial on the remaining charge.

The last issue presented for review need not be decided in light of our general affirmance of defendant’s convictions on both charges.

Defendant’s first contention is that the police used unnecessary and unreasonable force in executing the search warrant and for that reason the cannabis seized from his apartment should have been suppressed. Defendant’s first complaint of police conduct in executing the search warrant is that he was somehow aggrieved by the forcible entry of the police into the rear apartment of Lorean Saltmarch to gain entry to Green’s apartment. The defendant has completely failed to establish that he had any standing to object to the entry into the Saltmarch apartment. Without standing defendant could not establish how his rights were violated by the entry into someone else’s apartment where he neither lived nor had any proprietary interest. People v. McNeil (1972), 53 Ill. 2d 187, 290 N.E.2d 602.

Defendant also asserts that the police used unnecessary and unlawful force in executing the search warrant upon his apartment when they already had defendant in custody and the keys to peacefully unlock the door. Although the forcible entry to Green’s apartment was made by breaking down his door, the State’s witnesses testified that they announced their office and “no one opened the door” so they forced it open. The argument is now made that the police could have made a peaceful and expeditious entry without forcing down the door with defendant’s keys which were in the officers’ possession. The record reflects that an attempt was first made to use the keys to open the front door but the attempt failed and only then was the forcible entry made. Defendant cites People v. Polito (1st Dist. 1976), 42 Ill. App. 3d 372, 355 N.E.2d 725; People v. Richard (2d Dist. 1975), 34 Ill. App. 3d 621, 339 N.E.2d 400; and People v. Stephens (1st Dist. 1974), 18 Ill. App. 3d 817, 310 N.E.2d 755, for the proposition that an unannounced forcible entry to execute a search warrant is unlawful absent exigent circumstances. The Illinois statute concerning entry to execute a search warrant provides that police officers may use all “necessary and reasonable” force to effect entry. (Ill. Rev. Stat. 1975, ch. 38, par.

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People v. Green, 367 N.E.2d 1061, 52 Ill. App. 3d 636, 10 Ill. Dec. 452, 1977 Ill. App. LEXIS 3340 (Ill. Ct. App. 1977).

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