People v. Guenther

588 N.E.2d 346, 225 Ill. App. 3d 574, 167 Ill. Dec. 705, 1992 Ill. App. LEXIS 206
CourtAppellate Court of Illinois
DecidedFebruary 14, 1992
Docket2-91-0425, 2-91-0426 cons.
StatusPublished
Cited by7 cases

This text of 588 N.E.2d 346 (People v. Guenther) 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. Guenther, 588 N.E.2d 346, 225 Ill. App. 3d 574, 167 Ill. Dec. 705, 1992 Ill. App. LEXIS 206 (Ill. Ct. App. 1992).

Opinion

JUSTICE UNVERZAGT

delivered the opinion of the court:

The State appeals, pursuant to Supreme Court Rule 604(a)(1) (134 Ill. 2d R. 604(a)(1)), from two orders of the circuit court of Boone County, which granted the motions of defendants, Judith Guenther and Karl Guenther, to suppress evidence found in their apartment. The appeals were consolidated on the State’s motion. The sole issue in these appeals is whether the trial court erred in finding that defendant Karl Guenther did not consent voluntarily to the search of defendants’ apartment.

Karl and Judith were charged with the offenses of the unlawful production of Cannabis sativa plants (Ill. Rev. Stat. 1989, ch. 56½, par. 708) and the unlawful possession of between 30 and 500 grams of cannabis (marijuana) (Ill. Rev. Stat. 1989, ch. 56½, par. 704(d)). Defendants each filed a motion to suppress the evidence seized by police officers on December 7,1990, from defendants’ apartment.

At the hearing, defendants presented the following evidence. At about 6 a.m. on December 7, defendants were awakened by a loud pounding on the door to their apartment. Karl put on a pair of jeans and went to the top of the stairs leading to the exterior door. Karl yelled down to ask who was at the door. A person responded, “It’s Arnie.” Karl assumed it was his landlord, Arnie Pearse. Karl came down the stairs and opened the door. Several uniformed police officers were outside, and one of them informed Karl that they had a warrant for his arrest. Pearse was also there, and he was wearing his auxiliary police uniform. Karl informed the officers that he had to get dressed. Karl started up the stairs, and the officers followed him.

Judith was standing at the top of the stairs, and when the officers entered the apartment, she went into the bathroom to get dressed. Karl walked through the kitchen to the living room. He and Judith had slept in that room because they had not yet set up their bed in the bedroom, since they had just moved into the apartment a week earlier. While Karl was putting on a shirt, one of the police officers noticed a pipe on the coffee table. The officer picked it up, smelled it, and then he asked Karl “where’s the pot?” When Karl did not respond, the officer then said, “we have the dog in the area and we’re going to search the place anyway, so *** you should tell us where the pot is at.” Karl then pointed to the closet. Karl admitted on cross-examination that he had smoked marijuana in the pipe the night before. Karl also admitted that he opened the closet door and pointed to the 27 plants.

When Judith emerged from the bathroom, the officers already had taken Karl to the police station. The officers then brought in a drug-sniffing dog to search the apartment. Judith asked if she was going to be arrested. The officers indicated that they were not going to arrest Judith at that time, so she went to work. Judith was arrested when she returned to the apartment.

The State’s witnesses related a slightly different version of the events of December 7, 1990. Four officers were assigned to serve an arrest warrant on Karl for the unlawful delivery of marijuana. The officers were Sergeant Glenn Koski of the State Police, special agent Ron Bartlett of the State Police Di-vision of Criminal Investigations, and two Belvidere police officers, John Coduto and Bill Settle. The officers pulled up to the building where defendants occupied the second floor, and the landlord, Pearse, occupied the first-floor apartment.

The officers went to the side door of the building next to the driveway. Officer Settle knocked on Pearse’s door and asked him if defendants lived upstairs. Settle also asked Pearse if there was another door to the apartment. Pearse, who was dressed only in jeans, informed Settle that there was a front door to the second-floor apartment. Settle went to secure that door. Pearse let Settle into the vestibule area, then returned to his apartment to put on shoes and a shirt.

Coduto had the arrest warrant, and he knocked on the side door. When Karl asked who was there, Coduto responded it was “the landlord.” When Karl answered the door, Coduto informed him he was under arrest for the unlawful delivery of marijuana. Karl stated that he had to get dressed, and, in the interest of the officers’ safety, they followed Karl into the apartment. Coduto informed Settle that they had secured Karl, so Settle came upstairs through the side door. Settle stayed in the kitchen and did not see anything.

Officer Coduto noticed the pipe on the coffee table, and he explained to Karl “that if he had any other drugs in the house that he should give them to [the officers] because [Coduto] had probable cause to bring in a canine unit which was available.” Karl told the officers to follow him and opened the closet. Coduto then radioed for the canine unit. When Pearse came upstairs, Karl had already shown the plants to the officers.

There was a conflict in the testimony about whether, prior to the time Karl opened the closet, Officer Coduto mentioned to Karl that the police could get a search warrant for the apartment. Karl admitted on cross-examination that there was mention of a search warrant, and Officer Koski testified that Coduto mentioned a search warrant. Neither Coduto nor Bartlett testified that Coduto said anything about a search warrant.

In ruling on the motion, the court stated that the subterfuge employed by the police to get Karl to open the door was acceptable since the officers immediately identified themselves and showed Karl the warrant. The court also determined that it was reasonable for the officers to follow Karl into the apartment when he went to put on more clothing. The court denied the motion in regard to the pipe because it was in plain view. The court determined that Officer Coduto did not tell Karl that the police could get a search warrant. The court deemed this difference significant:

“I was rather distressed with Officer Coduto’s attitude, which seemed to be very confident that all he needed was probable cause to search and go get a drug dog, and I don’t think Officer Coduto based on the way he testified to this day really thinks he would have needed a warrant to go *** get the dog and go through.
He probably felt he had probable cause just to get the dog. ***
It is a close case as to what was or wasn’t said, and it makes all the difference in the world whether they gave the defendant an option waiting for a warrant or whether they just told him we’re going ahead and search and in effect might as well make it easy on everybody by bringing out the drugs.”

The court found that Karl did not consent voluntarily to the search. Consequently, the court suppressed the evidence of the plants as against both defendants. The State timely filed this appeal.

We note, at the outset, that defendants have not filed an appellee’s brief. We will therefore consider the issue raised by the State pursuant to the standards of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

The State contends that the trial court erred in finding that Karl did not consent voluntarily to the search of the apartment.

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Cite This Page — Counsel Stack

Bluebook (online)
588 N.E.2d 346, 225 Ill. App. 3d 574, 167 Ill. Dec. 705, 1992 Ill. App. LEXIS 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-guenther-illappct-1992.