*1 and re- appeal notice of effect of the negates the imposed sentence Rowe, App. 3d at jurisdiction. the trial court with vests understandably decision Bounds subsequent court’s supreme 8—1(c) Code, it mention nor did not mention section 5— for the Bounds did reason that cases, simple Rowe and similar Laurie, upon relied Similarly, to reconsider sentence. a motion involve reconsider sentence. a motion to Bounds, did not involve ILLINOIS, Plaintiff-Appellee, v. THE STATE OF THE PEOPLE OF ELLIOT, Defendant-Appellant. PATRICIAA. 2 — 98—1496
Second District No.
Opinion June filed
BOWMAN, P.J., dissenting. *2 Joseph Hildebrand, G. Appellate Weller and of Jack both State Defender’s Office, Elgin, of appellant. for (Martin Waller, Michael Attorney, Waukegan J. State’s of E and Moltz Bauer, Office, M. Attorneys Appellate Lawrence both of State’s Frosecutor’s of counsel), Field, Bridget and Ridge, People. L. of Park the JUSTICE opinion COLWELLdelivered the of the court: Following trial, defendant, Elliot, a bench A. Patricia was convicted (720 (West 570/402(c) of a possession controlled substance ILCS 1998)). She was to 12 sentenced months’ conditional She discharge. appeals, arguing that trial court improperly the denied her to motion evidence, the suppress State’s which was obtained violation of the amends, (U.S. XIV). fourth amendment iy We reverse. motion, hearing At the on the State Daniel called Greathouse, a Waukegan officer.He on September testified about he p.m., approximately 6:45 and 10 other exe- officers door, an apartment. cuted warrant to knocked on an- search He the office, got nounced his and answer. The rammed the door and entered. During sweep Greathouse pushed the door open sitting to a bathroom and saw defendant on toilet. was the only person apartment. secure, spoke After Greathouse determined that the area was officer, apartment’s living to defendant room. Another Tom Granger, stood while rest of the executed officers the warrant. rights, Greathouse advised defendant of her Miranda she which asked, you drugs you?” “[D]o waived. Greathouse Defen- have replied, “[Tjhey dant are mine.” Greathouse asked her where were, and pointed she her left breast. Greathouse asked for them, cigarette gave from pulled pack her bra. She pack Granger, found inside. who cocaine Defendant denied knowing contained; it in pack merely what the she said that she found it picked up. the bathroom and Defendant was arrested. cross-examination, Greathouse testified that he did not On believe the officers secured that defendant lived at the When They outside eight people about area, they restrained ground. lie on the and asked others some handcuffed her handcuffed before was recall that defendant did not Greathouse arrest, not free to leave. she was target not a was that defendant acknowledged exchange then occurred: following
warrant. you believe make doing her that would “Q. you observe What did being in the house? than committing a crime other she had been people in my experience, in a house. crack A. She That’s— they are users crack, drugs. Either are connected to crack houses using or who’s sell- knowledge of who’s they] [or or sellers ing.” testimony, Greathouse’s substantially corroborated
Granger apart- not live at thát she did Defendant testified the State rested. not know there. She did resided ment; her sister and brother-in-law they opened until had entered the the toilet but using to finish They allowed her door. bathroom Nervous, dropped purse, her it. she she flushed examined before them up put them and objects picked onto the floor. She spilled which into her before she left bathroom. purse back her handcuffed purse, took Defendant stated Miranda warn- give did not her living her to the room. and led happening. did not know what was ings. scared because she She was handcuffed window, her and brother-in-law Through a she saw sister not allowed to do to leave but was ground on the outside. She wanted *3 so. any drugs, she said asked her if she
When Greathouse her to re- allowed only cigarettes. An officer uncuffed she had Ultimately, bra, again. her she was them from her and cuffed trieve arrested. police cross-examination, that she told the defendant testified
On on the floor of the bathroom. cigarette pack that she found the purse. of her the items that fell out picked up gathered it when she did not have argued rested. Defendant defense apartment her; presence to seize her mere grounds sufficient of the cocaine. discovery to the justify did not the detention that led they gave her Mi- testimony that The trial court credited the officers’ her. they questioned handcuff her before randa and and suppress basis, court denied defendant’s motion On that tried, convicted, and Defendant was her motion for reconsideration. denied, timely ap- and she trial was sentenced. Her motion for a new pealed. suppress upon turns ruling court’s on a motion
When trial credibility assessments, and factual determinations we reverse if manifestly it is People erroneous. 187 Ill. 2d (1999). findings against when court’s of fact are not weight evidence, manifest of we novo a review de legal challenge Gonzalez, under those People facts. (1998). Here, the trial court credited the officers’ testimony, thus
making credibility against determination was not the manifest weight of the evidence. we will de review novo defendant’s constitutional claim under the of officers’ version See events. Gonzalez, 184 2d at 412. Ill. prohibits
The fourth amendment “unreasonable searches and seizures.” U.S. amend. argues IV Defendant that the State’s evidence was the fruit of an unreasonable seizure: a custodial inter (1) rogation adequate justification. Thus, determine must the police whether defendant to a interrogation; custodial (2) and, so, if they constitutionally whether had a sufficient basis doing so. “interrogation”
An occurs when a or uses words actions that he should know are to elicit an incrimi likely nating response. Innis, Rhode Island v. Ed. 2d 64 L. Here, defen asked dant, you any drugs you?” Obviously, “[D]o have this designed incriminating response, to elicit an itas did. an interrogation occurred.
In determining custodial, whether an we must (1) circumstances, including examine all of the time place (2) (3) confrontation; present; number officers (4) presence family friends; or absence of ar or indicia of a formal procedure, restraint, physical rest such as the show of or weapons (5) force, booking, in fingerprinting; or the manner which the Melock, the place interrogation. People dividual arrived at controls; single considering No factor after one, reasonable, each we must determine whether a innocent person would have believed that he was free to Kilfoy, leave. We little difficulty concluding that defendant was custody hours, was interrogated. During evening ap when she proximately apartment by officers entered the force. while us discovered defendant when entered bathroom she was while ing toilet. Defendant was alone in the secured placed ground. outside or on the Two officers those were handcuffs *4 warnings living led defendant and issued Miranda as room circumstances, no Under other officers searched these
191 person leave; reasonable would have believed he was free to indeed, explicitly testified that defendant not. we determine that defendant was to a custodial interrogation. that,
The trial court ruled
because the
issued Miranda warn
ings
defendant,
However,
Mi
constitutional violation occurred.
randa
fifth
protect
right
amendment
against
V, XIV;
coerced self-incrimination. U.S.
amends.
Brown
Illinois,
590, 600-01,
416, 425,
2254,
v.
45 L. Ed. 2d
95 S. Ct.
(1975). They
purge automatically
2260
the taint of an unrea
amendment.
Townes,
sonable seizure
violation of the fourth
People v.
(1982).
39
although
defendant
produced the
voluntarily
amendment,
under the fifth
“the
Fourth
Brown,
601-02,
Amendment
issue remains.”
45 L.
US.
Ed. 2d at
Generally,
a custodial
probable
cause violates
(1992).
the fourth
People R.B.,
amendment.
App.
Ill.
3d
Probable cause
if
exists
an officer knows facts that would lead a rea
sonable person to
committed
believe that the defendant
a crime.
Here,
“Where the probable standard is a search or seizure of a supported must be by probable particularized re- with spect person. to that requirement This cannot be undercut or avoided simply pointing to the fact that coincidentally there ex- probable ists cause to search or seize another or to search the premises where the may happen Illinois, to be.” Ybarra v. U.S. 62 L. Ed. 2d The police probable had cause to search the All that knew however, about They was that she was in it. did drugs. see her with did not see her drugs. cooper near ated police, with the suspiciously, not act and made no furtive gestures. Indeed, a hunch because defendant was in the she was either a user or a seller of drugs. Just as this hunch would provided not have probable cause to search her (see People Simmons, it did not provide probable cause to interrogation. conduct a custodial
Likewise, we cannot justify this detention
an investigatory stop
as
pursuant
Terry Ohio,
392
Ertl,
“[a]n
individual’s
alone,
*5
activity, standing
in an area
criminal
not
presence
expected
is
reasonable,
enough to
a
support
particularized suspicion
Wardlow,
119, 124,
committing
is
a crime.” Illinois v.
528 U.S.
570, 576,
673,
(2000);
145 L. Ed. 2d
120 S. Ct.
676
see also
Harper,
237 Ill.
The individual’s location
“among
Terry analysis,”
is
the relevant contextual considerations
a
itself,
enough, by
support
Wardlow,
but it is not
to
a
528
stop.
valid
U.S. at
Again, point nothing suspicious Greathouse could to about defen- result, beyond presence apartment. Terry dant her mere As a is inapplicable here. apart-
We note because the had a warrant to search the ment, they authority occupants had “the limited to detain the of the Summers, premises” Michigan while conducted the search. 692, 705, 340, 351, 452 U.S. 69 L. Ed. 2d 101 S. Ct.
However, reasons, not two Summers does validate detention of defendant.
First, “occupant” apartment. defendant was not an of the We observe that the definition of the term as it was used in Summers has LaFave, to considerable debate. See 2 & W. Search (3d 1996). 4.9(e), § in Kilfoy, Seizure at 650 n.118 ed. this adopted interpretation court Professor LaFave’s a resident dwelling “occupant” Kilfoy, of a is an under Summers. that, although
3d at 286-87. We concluded a officer has some any person premises latitude determine found on the is a whether resident, may detention if the not. he not effect Summers is Kilfoy, See at 287-88. App. 3d testified that he did not that defendant resided believe Thus, determined, even ask- apparently
at the ing “occupant” that she was not an under Summers. As a result, support Summers does not her detention.
Furthermore,
prevent
a resi-
Summers allows
leaving
premises during
from
their search. It does not allow
dent
likely to induce
“likely
aspects
them to effect a seizure
to have coercive
n.15,
Summers,
at
69 L. Ed. 2d at
self-incrimination.”
452 U.S.
words,
n.15,
In
The police obtained the evidence within
they began
seconds after
their interrogation; Greathouse asked
defendant if she had
drugs,
did,
she said that she
gave
Thus,
she
them to Granger.
almost no
time elapsed and no intervening
Furthermore,
circumstances occurred.
*6
the
purpose
clear
the
was “investigatory”;
police
the
“embarked upon this expedition for
in
hope
the
that
something might turn up.” Brown, 422
U.S. at
Obviously,the State prevail could not on remand without the evi dence that we have suppressed. result, ordered As a we reverse defendant’s conviction outright. Merriweather, See People v. 261 Ill. App. 3d reasons,
For these judgment the of the circuit court County of Lake is reversed.
Reversed.
GALASSO, J., concurs. BOWMAN, PRESIDING JUSTICE dissenting: I respectfully dissent. issue, my view, critical in is whether the had a police reason- suspicion
able
to warrant the detention and questioning of defendant.
Ohio,
Under Terry
v.
cause infers from facts that is when to commit a crime. committing, People has or is about Ertl, I App. agree majority’s 292 Ill. While with the position presence,” more, that “mere in a “crack house” is (see justify Terry stop People Harper, App. insufficient to a 237 Ill. (1992)), justified Terry 3d 202 I believe that in this case the facts stop. Graves, (1996), People App. distinguished
In 3d 386 we There, in in Harper applicable Harper, police a manner here. as offic house, ers enter drug saw defendant a known remain a short time, nothing and leave. The officer observed to indicate what the de Nevertheless, defendant, upheld stop fendant did inside. First, distinguishing Harper, because of two additional facts. less than stop, police purchases conducted controlled week before Second, stop, the house. less than three hours ar before people building drugs four other exited the in their rested who with Graves, Thus, mere possession. pres 3d at drug support Terry ence of a within a house will not known stop person. knowledge drug activity of that of recent occur ring suspicion within the house constitute reasonable that a present purpose engaging activity. is therein for the in such suspected Officer Greathouse testified he house,” Granger’s “complaint in a crack Officer “[s]he was for search warrant” conducted a controlled shows purchase apartment only days at the a few earlier. as Graves, apart in the case us knew not that the before generally drugs likely ment was a “crack house” but also that were result, being day sold there on the of the search. As a suspicion reasonable who was alone drug activity. They probable was involved with did not have (see Simmons, arrest or search her grounds stop but had sufficient grounds and there for valid produced doubt arrest. *7 recency drug activity apartment
It was the of the Additionally, defendant. permitted an articu totality of the circumstances dictates whether there exists a crime had or was about to be lable basis to believe Lockett, Other committed. Terry stop for a in this case were defendant’s support facts which lend respond to the occupancy sole her failure entry, for and her location in a closed door bathroom announcement would alone in the the toilet. The fact that a police Also, lead officer to believe she had more than a visitor status. that, knowledge raid, is common in the face of a police drug oc- cupants will attempt illegal drugs to flush down the toilet.
Finally, I note that the recency drug activity and the activities of defendant were not on bases which the trial court denied suppress. defendant’s motion to The trial court ruled issued Miranda no constitutional violation notes, occurred. As the majority warnings protect Miranda only a defendant’s fifth amendment right against coerced incrimina V, tion. XIV; Illinois, U.S. amends. Brown 600- L. Ed. 2d S. Ct. purge automatically the taint of an unreasonable seizure in violation of the fourth People Townes, amendment.
Nevertheless, because ruling affirm a sup a motion to press supported reason the record (People v. I would affirm the ruling trial court’s on the
ground that no fourth amendment violation occurred here. BUCHAKLIAN, SOOLTON Plaintiff-Appellant, v. LAKE COUNTY FAMILY al., YOUNG MEN’S CHRISTIAN ASSOCIATION et Defendants-Appellees. Second District No. 2 — 99—0353 Opinion April filed Rehearing denied June