People v. Thornburg

895 N.E.2d 13, 384 Ill. App. 3d 625, 324 Ill. Dec. 13, 2008 Ill. App. LEXIS 814
CourtAppellate Court of Illinois
DecidedAugust 12, 2008
Docket2-07-0449
StatusPublished
Cited by6 cases

This text of 895 N.E.2d 13 (People v. Thornburg) 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. Thornburg, 895 N.E.2d 13, 384 Ill. App. 3d 625, 324 Ill. Dec. 13, 2008 Ill. App. LEXIS 814 (Ill. Ct. App. 2008).

Opinion

JUSTICE BOWMAN

delivered the opinion of the court:

After probation officers recovered pornographic material from his bedroom and computer on January 4, 2005, defendant, Clayton Thorn-burg, was charged with three counts of possession of child pornography (720 ILCS 5/11 — 20.1(a)(6) (West 2004)). Defendant subsequently filed a motion to quash his arrest and suppress evidence. On April 5, 2007, the circuit court granted the motion, finding that defendant’s consent to the home search was involuntary and that the probation officers lacked a reasonable suspicion to perform the search. The State filed a certificate of impairment and timely appealed under Supreme Court Rule 604(a)(1) (210 Ill. 2d R. 604(a)(1)). It argues that (1) the officers had a reasonable suspicion to search defendant’s bedroom and computer since defendant was already on probation, and (2) defendant consented to the searches. We affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

On March 13, 2007, a hearing on defendant’s motion to suppress was held. Defendant testified as follows. Defendant had pleaded guilty to indecent solicitation of a child and was on probation with Cook County when probation officers arrived at his residence on January 4, 2005. At that time, defendant resided in Aurora with his brother, Robert. The officers, Wendy Joslin and Aníbal Ilarraza, stated that they were there to do a home check and to search the premises. Defendant allowed them in, and the officers went to the garage first and then to the living room. After looking around the living room, Ilarraza told defendant that he wanted to look in his bedroom, and defendant complied. In the bedroom, Ilarraza asked who the desk belonged to. Defendant stated that it belonged to Robert. Ilarraza then opened the desk drawer and found three adult pornographic DVDs. The bedroom had a television but no DVD player in it. They returned to the living room and Ilarraza stated that he was going to search the computer. Robert was sitting in front of the computer and stated that Ilarraza could not search the computer. Ilarraza stated that he was going to search it anyway. He pulled a disk from his pocket, turned the computer on, and inserted the disk. Ilarraza claimed that there were pornographic images of children on the computer. Joslin then called the Aurora police department. The police arrived and removed the computer from the home.

Defendant stated that he thought that he had to allow the officers in to search his home. He did not feel that he had a choice to refuse the search, because he believed refusing would result in a probation violation and jail. Neither the probation officers nor the Aurora police officers presented a search warrant to defendant.

On cross-examination, defendant admitted that he had agreed to and was aware of various probationary conditions as part of his plea agreement in Cook County. Defendant admitted to signing a probation agreement and a “Computer Use Agreement” after the terms were discussed with him. Those agreements were admitted into evidence. One condition prohibited him from possessing any adult pornography. Another condition prohibited him from using the Internet for sexual purposes. He admitted that the computer was in plain view in the living room but denied giving Ilarraza permission to turn it on. Robert stated that he did not want the computer searched. Defendant admitted that he never told the officers to stop searching but stated that he did not believe that he had the option.

Ilarraza testified as follows. He arrived with Joslin to visit defendant’s home pursuant to defendant’s probation conditions. Joslin knocked on the door and told defendant that they were there to conduct a home visit. Defendant let them in and they walked into the living room. Ilarraza asked defendant where his bedroom was, and defendant led him to his bedroom. Ilarraza looked through defendant’s dressers and found three DVDs that appeared to be adult pornography, based on the covers and disks inside. He believed there was a television and a DVD player in the bedroom. He asked defendant if the DVDs belonged to him, and defendant answered affirmatively.

After finding the DVDs, Ilarraza returned to the living room and asked defendant if he had Internet access. Defendant said that he did. Ilarraza then said that he would be conducting a search on the computer. He also said to defendant and Robert, “if you don’t mind me looking through your computer, I want to search it to make sure there’s nothing that’s not supposed to be on there.” Both defendant and Robert gave him permission. He turned the computer on and inserted a specialized disk that retrieves every image that has ever been on a computer. Ilarraza immediately began seeing adult and child pornographic images on the screen. Joslin asked defendant if “that was his stuff,” and he responded that it was.

On cross-examination, Ilarraza admitted that he did not have a warrant to search the house and had no information that defendant had violated any terms of his probation. Ilarraza believed that he was able to search the home because of the probation paperwork that defendant signed originally. He admitted that the terms of the probation agreement stated that defendant gave permission for officers to enter and search his home “when there is reasonable suspicion to require it.” Ilarraza stated that “the reasonable suspicion [is] that they’re already convicted of a sexual offense,” and his presumption is that there is “always reasonable suspicion.” He admitted that, before he opened any drawers, there was nothing unusual about defendant’s bedroom. He admitted that there was nothing unusual about the computer before he turned it on and inserted the special software. However, after discovering the DVDs, he became suspicious about the computer.

Joslin testified as follows. She arrived with Ilarraza at defendant’s residence and informed him that she was there to perform a home visit. Defendant allowed them in. She searched the living room while Ilarraza searched defendant’s bedroom. She observed a desk with a computer and some books on it. She looked through the books to make sure there was no pornographic material. Ilarraza returned to the living room with three pornographic DVDs that he retrieved from the bedroom. Ilarraza then asked for permission to search the computer, and defendant said yes. Joslin stated that neither defendant nor Robert objected to the search of the computer. Ilarraza then turned the computer on and inserted the specialized disk. Joslin observed images, of child pornography and adult pornography.

On cross-examination, Joslin admitted that she was not performing the home visit because she had information that defendant had violated his probation or committed any crime. She admitted that she did not have a warrant and that she told defendant that they were there “for a field visit and [they] were going to search his home.” If defendant had refused the visit, Joslin would have left and reported the refusal as a violation of his probation. When she entered the living room, the computer was not turned on and there were no images on the screen. There was nothing unusual about the computer. After Ilarraza searched the computer, Joslin called the Aurora police department. Aurora police officers arrived and confiscated the computer.

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Cite This Page — Counsel Stack

Bluebook (online)
895 N.E.2d 13, 384 Ill. App. 3d 625, 324 Ill. Dec. 13, 2008 Ill. App. LEXIS 814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-thornburg-illappct-2008.