People v. Plante

Opinion

No. 3-05-0075 ______________________________________________________________________________ Filed January 26, 2007. IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2007

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court of the ILLINOIS, ) Tenth Judicial Circuit, ) Tazewell County, Illinois, Plaintiff-Appellee, ) ) v. ) No. 02-CF-0342 ) GLEN R. PLANTE, ) Honorable ) Peter J. Ault, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE McDADE delivered the opinion of the court: ______________________________________________________________________________

A grand jury indicted defendant, Glen R. Plante, for unlawful manufacture of 900 grams

or more of a substance containing methamphetamine, possession with the intent to deliver 900

grams or more of a substance containing methamphetamine, and possession of 900 grams or more

of a substance containing methamphetamine. Prior to trial, defendant filed a motion to quash

arrest and suppress evidence seized from his home on May 6, 2002. The circuit court of Tazewell

County denied defendant’s motion. Following a jury trial, the court convicted defendant and

sentenced him to concurrent 25-year terms of imprisonment for unlawful manufacture and

possession with intent to deliver. Defendant appeals, arguing the court erred in denying his

motion to quash and to suppress because a police officer entered his home, arrested him, and

seized evidence without a warrant, without consent, and absent exigent circumstances justifying a warrantless entry. For the reasons that follow, we reverse and remand.

BACKGROUND

Defendant’s motion to quash his arrest and suppress evidence alleged that Deputy Sheriff

Jeffrey Bass made a nonconsensual and warrantless entry into defendant’s home whereupon Bass

arrested defendant and seized a number of items. At a hearing on the motion, defendant testified

that he was at his home on the day in question with Penny Wood, his girlfriend, and Robert

Rusterholz, his friend, when defendant observed a police vehicle pull up to the home. Defendant

approached the vehicle and asked Bass if there was a problem. Bass asked if defendant knew why

he came to his home and defendant replied he thought Bass might be investigating a local

ordinance violation related to the number of vehicles parked at defendant’s home. Bass told

defendant he would ?check on it” and return.

Ten minutes later, Bass returned and defendant consented to Bass’s entering his home.

Defendant had a large number of electronic devices in his home in connection with an electronics

repair business. Bass asked defendant if he possessed any stolen property and defendant replied

he did not but that Bass was free to take any stolen property that might be present. Defendant

allowed Bass to search for stolen property. Bass searched the home, including a room containing

two toolboxes. During the search, defendant told Bass he thought Bass may be investigating a

possible theft of telephone services. This was because the previous day, defendant repaired a

temporary telephone line running between his home and an adjacent county building. Defendant

showed Bass a work order concerning the telephone line.

Bass left and returned 10 minutes later accompanied by Detective Darrell Stoecker. The

officers told defendant they were investigating a theft of toolboxes and wanted to check the serial

-2- numbers on the toolboxes in defendant’s home. Defendant allowed the officers to enter and, after

checking the serial numbers, the officers asked defendant what was upstairs. Defendant allowed

the officers upstairs then returned to the first floor. The three men entered the kitchen, where

Bass asked defendant the location of the basement. Defendant indicated the entrance to the

basement and Bass entered. Bass returned three minutes later and both officers left.

Five to 10 minutes after Bass and Stoecker left, Wood and Rusterholz were leaving

carrying laundry. Defendant stood in the doorway, holding the screen door open for Wood and

Rusterholz, where they encountered Bass and Stoecker. Stoecker stopped Wood and Rusterholz

and Bass grabbed the screen door. Bass stood in front of defendant with his arm extended. Bass

told defendant he needed to speak to him inside the house. Defendant asked Bass if they could

talk outside and Bass replied “No.” Bass moved his hand as though to escort defendant inside the

home. Defendant then entered the home and Bass followed. Bass told defendant they needed to

speak in the basement and asked what was going on there and where the lab was. Bass then

escorted defendant to the basement and placed him under arrest.

Bass also testified at the hearing on defendant’s motion. Bass testified consistently with

defendant’s testimony, with the following additions: Bass went to defendant’s home to

investigate a possible theft of telephone services. The sheriff’s office had also recently received a

tip that persons were engaged in drug trafficking from defendant’s residence. After leaving the

first time, Bass spoke to Stoecker and they devised a plan to investigate the possible theft of

telephone services in which Bass would return to the residence and Stoecker would call the

county number at a designated time to see if the line rang in defendant’s home. Bass returned to

defendant’s home and defendant invited him to enter. When Bass left the second time, he again

-3- spoke to Stoecker and told him about the toolboxes. Stoecker had been investigating a theft of

similar toolboxes.

When Bass asked defendant about the basement, defendant told him the basement was

flooded. Bass insisted on seeing the basement and discovered the basement was in fact flooded.

There, he smelled ammonia. Defendant remained on the bottom of the stairs but Bass crossed

some running boards to a corner of the basement. He observed what he considered to be a

methamphetamine laboratory. When Bass and Stoecker left the residence, Bass took Stoecker to

the rear of the home and told him what he observed. The officers contacted the State’s

Attorney’s office for advice on how to proceed. An assistant State’s Attorney told Bass that he

should have arrested defendant while Bass was still inside and that Bass would have to gain

defendant’s permission to reenter the home.

Bass and Stoecker went to the door, where they encountered Wood and Rusterholz. Bass

testified defendant was at the front door when he spoke to him. Bass further testified as to his

encounter with defendant as follows:

?A. And I said, I want to talk to you about something. He

said,

inside and talk about it. And so we walked into the dining room.

Q. When you say, we walked into the dining room, how did

that happen?

A. He turned around [and] walked in the house. I followed

him and he turned like you and I are, and stood face to face, and I

said, Mr. Plante, what is going on[?]

-4- ***

Q. As of the time you entered the residence behind

[defendant], he hadn’t verbally said, come on in or okay or anything

of that sort?

A. No, he walked towards the dining room and I followed

him. I said, I would like to talk to you in the house. We went into

the dining room.

Q. And as of that time you didn’t have a search warrant

yet?

***

A. I asked him, what has been going on here. And he acted

like I asked him, what was going on in the basement. He denied

doing anything. And I said, let’s go take a look.

I said let’s go down and take a look. I made sure that he went

down in front of me because for officer’s safety, I knew I was going

to arrest him, so he walked in front of me.

Q. How did you make sure he went down in front of you?

A. I waited for him to walk towards me and I waited for

him to initiate walking to the basement and he went down first and

I followed him down and actually we walked, this time we both

-5- walked across the [running boards] back into the corner where the

lab was at that one time, and he turned and looked at me.

A. I arrested him and I went back and took inventory, and it’s on

the evidence sheet, my original inventory.

Q. Okay. Let me ask you this, when you had arrested him and

then went back to the basement did you confine your discoveries to that 4

foot area [(where he initially observed the alleged lab)] or did you make

other discoveries as well?

A. I had noticed some of the items had been moved from the area

over to the drain. He had moved some stuff over to the drain. He had

appeared to dump stuff and there was stuff scattered out from the 4 foot

area.

Q. So you would have seized those items?

A. Yes.

Q. And then after the search warrant was obtained?

A. Right. I seized the items that I saw. Sure.”

The trial court denied defendant’s motion and the matter proceeded to trial. Following

trial, the jury found defendant guilty of all three counts in the indictment. Defendant filed a post-

trial motion arguing the court erred in denying his motion to quash arrest and suppress evidence.

The court denied defendant’s motion. This appeal followed.

-6- ANALYSIS

We will reverse the trial court's ruling on a motion to suppress evidence only if it is

manifestly erroneous. People v. Anthony, 198 Ill. 2d 194, 201, 761 N.E.2d 1188, 1192 (2001).

Defendant contends Bass made his third entry into the home without consent and absent any

exigent circumstances to justify a warrantless entry. Bass then proceeded to arrest defendant and

conduct a warrantless search of the premises. Therefore, defendant argues, police conducted an

illegal search of his basement and any items seized are the fruits of the illegal arrest and search and

must be suppressed.

The State responds the evidence was ?overwhelming that the defendant voluntarily

consented to the search of his home.” In support of its position, the State initially relies upon

facts related to Bass’s first two entries into defendant’s home. For example, the State notes that

?the defendant took the officer around his house, showing him the different rooms *** pointed

out the basement door to the deputy and *** even turned on the basement light for the deputy.”

However, that evidence is irrelevant to a determination of whether defendant consented to

Bass’s third entry into defendant’s home. The legality of each entry must be determined

individually. See People v. Koniecki, 135 Ill. App. 3d 394, 400, 481 N.E.2d 973, 979 (1985)

(?even though the initial entry into the residence was justified under the

the warrant requirement *** the second entry into the basement *** must be separately analyzed

for its legality”); People v. Finley, 293 Ill. App. 3d 377, 383, 697 N.E.2d 1154, 1161 (1997),

quoting United States v. Diaz, 814 F.2d 454, 459 (7th Cir. 1986) (?

by our analysis that one consensual entry means that law enforcement agents may thereafter enter

and exit a home at will’”) (applying the ?consent once removed” doctrine)).

-7- ?A well-settled, specific exception to the fourth amendment's warrant requirement is a

search conducted pursuant to consent.” People v. Pitman, 211 Ill. 2d 502, 523, 813 N.E.2d 93,

107 (2004). ?Consent is not valid unless it is voluntary, and in order for consent to be voluntary,

it must be freely given without duress or coercion (express or implied).” People v. LaPoint, 353

Ill. App. 3d 328, 332, 818 N.E.2d 865, 868 (2004).

?

fact the consent to search was coerced, account must be taken of

subtly coercive police questions, as well as the possibly vulnerable

subjective state of the person who consents.’ [Citation.] ***

[T]he State bears the burden of proving the consent was truly

voluntary.” Anthony, 198 Ill. 2d at 202, 761 N.E.2d at 1192,

quoting Schneckloth v. Bustamonte, 412 U.S. 218, 229, 36 L. Ed.

2d 854, 864, 93 S. Ct. 2041, 2049 (1973).

In support of its position that defendant consented to Bass’s final entry into defendant’s

home, the State relies on testimony that defendant stepped back into the house and the deputy

followed him. The State notes that ?Deputy Bass did not yell or scream or threaten him” and

?did not push the defendant.”

Defendant did not consent to Bass’s third entry into the home. Defendant never told Bass

that he may enter the home on his third attempt and specifically asked if they could speak outside.

The State relies on defendant’s ?nonverbal conduct” in walking back into the home after Bass

demanded to speak inside to support its theory of consent. While "

what constitutes consent in the absence of an express verbal statement’" (Anthony, 198 Ill. 2d at

-8- 202, quoting People v. Henderson, 142 Ill. 2d 258, 298 (1990)) the supreme court has recognized

that "

202, quoting People v. Kelly, 76 Ill. App. 3d 80, 87 (1979)). Bass admitted that he told

defendant ?I am going to talk to you inside.” This is not a request. It is an evident display of

?apparent authority” to which defendant merely acquiesced.

The State’s repeated assertion that Bass never ?yelled, screamed, *** threatened [or]

touched” defendant is both unavailing and misplaced. Consent may not be ?extracted

or implicit means, by implied threat or covert force.” (Emphasis added.) Anthony, 198 Ill. 2d at

202, 761 N.E.2d at 1192, quoting Bustamonte, 412 U.S. at 228, 36 L. Ed. 2d at 863, 93 S. Ct. at

2048 (1973). Bass’s tactics were more than ?subtly coercive.” Bass at minimum implied that

force would be employed to secure his final entry when he blocked defendant in the door to the

residence and stated affirmatively his intent to enter in spite of defendant’s request to speak

outside.

Finally, the State concedes that it never argued, and the trial court never found, that

exigent circumstances justified Bass’s warrantless search of defendant’s home. The State admits

that the court denied the motion to suppress solely on the basis of its finding that defendant

consented to the search. Nonetheless, the State argues that the dangerousness of chemicals used

to manufacture methamphetamine provide sufficient grounds to find exigent circumstances

justifying a warrantless entry into defendant’s home.

?The Illinois Supreme Court has recognized the following

factors as relevant to a determination of exigency in circumstances

involving a warrantless entry into a private residence to effectuate

-9- an arrest: (1) whether the crime under investigation was recently

committed, (2) whether there was any deliberate or unjustified

delay by the police during which time a warrant could have been

obtained, (3) whether a grave offense was involved, particularly a

crime of violence, (4) whether there was reasonable belief that the

suspect was armed, (5) whether the police officers were acting on a

clear showing of probable cause, (6) whether there was a likelihood

that the suspect would escape if he was not swiftly apprehended,

(7) whether there was strong reason to believe the suspect was in

the premises, and (8) whether the police entry was made peaceably,

albeit nonconsensually.” People v. Gott, 346 Ill. App. 3d 236, 242,

803 N.E.2d 900, 908 (2004), citing People v. Williams, 161 Ill. 2d

1, 25-26, 641 N.E.2d 296, 306 (1994).

Defendant argues that ?there was no evidence that Deputy Bass had reason to believe that

the suspected methamphetamine laboratory presented any imminently dangerous condition.”

Defendant also cites Gott, 346 Ill. App. 3d at 245, 803 N.E.2d at 908, for the proposition that

where ?there was no evidence presented by the State that the officers were aware of a current

dangerous condition or that there was in fact a dangerous condition as a result of an active

methamphetamine lab,” the third or ?grave offense” factor for a finding of exigent circumstances

is not satisfied. The State failed to cite any evidence of Bass’s belief or knowledge of the level of

danger in defendant’s home or whether any danger actually existed. The State merely relies on

the ?common knowledge that a meth lab is a fire hazard and hazardous chemicals are used to

-10- manufacture methamphetamine.”

The evidence is insufficient to support a finding that Bass believed that a currently

dangerous condition existed in defendant‘s home. The evidence is, in fact, to the contrary. Bass

testified that he suspected the presence of a methamphetamine lab following his second entry into

defendant’s home. However, Bass did not arrest defendant and did not alert, as the State says he

had reason to, ?the proper authorities to dismantle and dispose of these hazardous chemicals.”

Instead, he had a 5-10 minute conversation with Stoecker at the rear of the allegedly dangerous

house.

To support a finding of exigent circumstances justifying a warrantless entry, the State

must produce evidence of the officer’s belief an imminent threat exists. See Gott, 346 Ill. App. 3d

at 244-45, 803 N.E.2d at 908 (and cased cited therein). No such evidence exists in this case nor

does the evidence support an inference Bass held such a belief. The State offers no other grounds

for finding that exigent circumstances justified Bass’s third entry into defendant’s home.

Accordingly, we cannot affirm the trial court’s order denying defendant’s motion to quash arrest

and seize evidence on these grounds.

CONCLUSION

Because defendant did not consent to Bass’s third entry into the home, his arrest and the

subsequent search of his home were illegal. See People v. Finley, 293 Ill. App. 3d 377, 382, 687

N.E.2d 1154, 1158 (1997) ("The Fourth Amendment

warrantless and nonconsensual entry into a suspect's home in order to make a routine felony

arrest’" [citations], "even with probable cause, unless the entry was consented to, or unless there

were

-11- any evidence obtained must be suppressed. See People v. Wimbley, 314 Ill. App. 3d 18, 35, 731

N.E.2d 290, 302 (2000) (?The warrantless entry was illegal, and all the evidence seized therein is

suppressed”). For the foregoing reasons, the circuit court of Tazewell County’s order denying

defendant’s motion to quash arrest and suppress evidence and defendant’s conviction are

reversed.

Reversed and remanded for further proceedings consistent with this opinion.

LYTTON, P.J. and SCHMIDT, J., concur.

-12-