*1 THE PEOPLE ILLINOIS, OF THE STATE OF Plaintiff-Appellant, v. TILLMAN,
RONALD Defendant-Appellee. (5th Division) First District No. 1 — 03—2234 Opinion January 14, Rehearing February 14, filed denied 2005. 2005. NEVILLE, J., dissenting. (Renee Devine, Goldfarb, Attorney, Chicago A.
Richard State’s of Veronica Calderon-Malavia, counsel), Shim, Attorney, Samuel Assistant State’s People. for the (Bruce Landrum, As- Defender, Burnette, Chicago C. Public Edwin A. Defender, counsel), appellee. for
sistant Public the court: opinion delivered JUSTICE GALLAGHER Stampley, Jason Tillman, and codefendants Ronald Defendant charged various Goldman, were with Carlvin, Manning Yennitt possession charged Specifically, defendant drug offenses.1 filed a motion Defendant *2 to deliver. with intent a controlled substance il- arguing suppress evidence quash his arrest was the evidence recovered home and that the entered his legally motion granted defendant’s arrest. The trial court illegal fruit of the State appeal, On the reconsider. the State’s motion to and denied the evidence suppressing erred in that the trial court contends proceed- further and remand for We reverse from defendant. recovered ings. Manning Goldman testi- hearing, codefendant suppression
At the 6, 2002, p.m., he was between 6 and 6:30 on October fied that housing project Homes Taylor in the Robert apartment defendant’s apartment in Defendant lived Federal Street. at 4037 South located games and smoke play he there to stated that went 1409. Goldman Stampley and Ven- codefendants Jason defendant and marijuana with for about apartment in the nitt Carlvin. had been Goldman bathroom, he saw that minutes, when, exiting after him and found cannabis apartment. The searched pants. his hidden in the crotch of incident, and his the time of testified that at
Defendant number 1409. apartment Street lived at 4037 South Federal aunt a smoking marijuana he heard Defendant stated that police, and the who opened door knock at his door. Defendant drawn, apart- entered the weapons their in street clothes and had wall, and asked him who held ment, pushed against the that he was the told the lease to the Defendant leaseholder. bedroom, from his which was
Defendant retrieved his lease apart- searching the entire police began and the apartment, back of the room, living to the returned from his bedroom ment. When defendant couch, he remained while told him to sit on the where officers front kicked a hole in the his searched from defendant’s bedroom. and recovered narcotics room wall Carlvin, against Goldman charges found 1The trial court dismissed the Stampley guilty possession a marijuana, found guilty possession controlled substance.
Defendant did permission to enter his signed never form, consent-to-search and never saw search war- rant.
Officer Edwin Uteras 6, 2002, testified that on October he was working Lee, Snelling, Seinitz, with Officers and Schoeff. Officer Lee anonymous had informed him an reported “drug citizen dealers run in 1409” of 4037 South Federal Prior Street. October Officer had approximately Uteras made 50 narcotics arrests at 4037 South Federal Street. At p.m., about 6:15 Officer Uteras arrived at building with Officers Schoeff and Upon Seinitz. arrival, he saw that Lee Officer had detained Tywan Jordan, who working “security,” at the stairwell the building. Officer Lee told him that it proceed was safe to up stairway. Uteras, As Officers Schoeff, and up Seinitz went stairway, Officer Uteras saw Gold- Stampley man and look in his direction and heard say them “slick- ers,” i.e., police. Goldman plastic bag containing threw down clear cannabis, Stampley ground threw cocaine onto the of the third floor. up Goldman and fled the stairs and the officers the dropped recovered items.
The officers then chased Goldman Stampley up the stairs to the fourteenth floor. Officer Uteras did not see Goldman or Stampley enter apartment but the time he reached the apartment, Of- ficers Seinitz and Lee entered the and the door was *3 open. living Goldman was in the front room on his Stamp- knees and ley was next to him. Seinitz,
Officer Joe assigned who had been the public housing to years tactical unit for six incident, the time this corroborated Of- ficer testimony. Uteras’ Officer Seinitz also testified that Officers Uteras and Schoeff dropped by recovered items Stampley and Goldman then followed him he Stampley as chased and Goldman up the stairway. Stampley Officer Seinitz saw and Goldman run into apartment and he followed them inside because he was pursuing felony. two offenders he believed committed a Upon entering Stampley stopped Goldman in living room and were detained other officers. Officer Seinitz defendant, quickly saw who walked from the room the to back bedroom, and he him. followed Officer Seinitz followed defendant into something his room because defendant had in his hand and because because, his He also movements. followed defendant into his bedroom officer, public housing based on his as concerned experience safety for his in felony progress. believed a bedroom, entering After Officer Seinitz observed defendant in place the item that was his hand into a hole in the wall. Officer about a custody and kicked the wall in placed Seinitz then packets bag containing hole. He recovered below the foot handgun. and a 9-millimeter cocaine suspected under the motion evidence, trial court took hearing After pursuit of that the officers were The court stated advisement. he in defendant’s Goldman, had a and therefore Stampley defendant, the court stated: However, regarding actually posture. He little of different “Mr. Tillman is in a bit standing got there. lives there. He’s absolute >;< *** looking at it I we have to start Mr. Tillman think [With] something while the eyes happen through fresh and see does probable cause lawfully give them apartment that would are in making to start seizures. v * K<
*** ambiguous, Mr. Tillman is somewhat [W]hat heard about says, being candid. He I don’t ambiguous, because the officer is doing had in hand. I don’t know what he’s know what he *** exactly. this to be on the close side.” consider quash motion to response The State filed a to defendant’s written evidence, part, in that: the war- suppress arguing, officers’ arrest prob- on entry into was lawful based rantless defendant’s fleeing the hot of a able cause and felons, and, searching fleeing felon; for the while inside plain possession of what police saw defendant view on the thought conducting hearing After another mo- was narcotics. tion, again the court took the matter under advisement. granted quash then motion to arrest and
The court defendant’s evidence, part: suppress stating, in They patrol project. housing were in a
“[T]here activity suspicious there some information that be some particular in a policeinvestigation goingson wouldwarrant a about unit. hallways areas, and common While ***Their encounters with of the co-defendants.
encountered two Goldman, caused them to people, Mr. and Mr. these two matters, During both those men want to talk with them. these very apartment bolted for the discarded contraband and there check out. *4 They police pursuit. The do ran into the fulfilling pursuit hot problem not have a this lawfully. fleeing felons, they got somebody into else’s unit *** unit, they got it turns out that this is where When inside the place. this Mr. Tillman lived. He is the leaseholder of 198
All going People this tumult is on. running are in. Plainclothes are chasing people officers into a unit. goes Mr. Tillman the back of the unit and something throws into a hole in the wall. light
In there, everything going on did not know may had, what have but this was his home. It was his unit. He put something wall, in a hole in the particularly what find relevant is that the acknowledged did not see what in his hand put [sic] and what in the hole in the wall. They did not They see it. did not know what it was.
They They went to the hole in the wall. could not see what was point there. The kicking started into the hole in the literally wall, wall and through dry kicked and at that time subject discoveredthe contraband which is the of this motion. v $ case, In this do not know what it was that Mr. Tillman put in that hole. And there have been things lots of other than *** danger contraband or matters that he put the hole. It anything. could have been It is kind of neutral conduct.” The State filed a motion for the court to ruling, reconsider its which the trial court denied. The State appeal. then filed this
In reviewing ruling on a suppress, motion great we accord deference to a trial court’s historical findings factual unless such find- ings against evidence; however, are weight manifest we legal review de novo the ultimate question of whether the evidence suppressed. States, 699, should be 690, Ornelas v. United 517 U.S. 134 911, 920, L. 1657, (1996); Pitman, Ed. 2d S. 116 Ct. v. People (2004). 502, Ill. 2d 512-13
Initially, agree we with the trial exigent court’s assessment that present circumstances were officers hot Stam —the pley Goldman, therefore, their entry into defendant’s home without a proper. warrant police may make a warrantless entry into someone’s home exigent if circumstances exist. v. (1997). McNeal, In determining whether a exigent, circumstance is totality we evaluate the of the circumstances reasonably whether the officer acted at the time he entered (1983). Yates, premises. People v. 98 Ill. 2d pursuit” The “hot a suspect public place who flees from a into his residence constitutes Santana, 38, 43, an circumstance. United States 427 U.S. L. Ed. 2d 96 S. Ct.
Here, Officer Lee “drug received information that dealers [ran]” in defendant’s Officer Lee called his team for as working sistance and detained the man “security” at the base of the building. stairwell of defendant’s responding After to Officer Lee’s call
199
Seinitz,
Uteras,
Schoeff
scene,
and
Officers
talking
him at the
and
to
Stampley. Gold-
and
and saw Goldman
up
climb
the stairwell
began to
to
hands,
they dropped
which
in their
Stampley had items
man and
stairs to defendant’s
“slickers,”
up
ran
yelled
and then
ground,
items,
bag
a
of
recovered
Uteras and Schoeff
apartment. Officers
Stampley,
and
by Goldman
marijuana, dropped
of
bag
cocaine and a
up the stairs
and Goldman
pursued Stampley
and Officer Seinitz
felony.Based
the total-
committing a
he believed
because
the officers
circumstances,
experience,
the officers’
including
ity of the
as
apartment,
entered defendant’s
properly
Stampley and Goldman.
probable cause to
Next,
that Officer Seinitz
we determine
arrest
to
a warrantless
are entitled make
arrest defendant. The
arrest,
lead a
facts,
of the
would
at the time
which
possess
and that the
a
has occurred
person to believe that
crime
reasonable
Buss,
2d
People v.
to
arrested committed the crime.
person
be
(1999).
activity and commonsense
144,
probability
criminal
doubt,
a
determine
considerations,
proof beyond
not
reasonable
517,
112 Ill. 2d
Montgomery,
v.
probable
People
whether
cause exists.
(1986).
probable
cause must be based on
Determinations
the officer at the time of arrest
totality of circumstances known to
(2003) (modified
873,
upon
Rucker,
v.
(People
App.
2004))
from
and must be considered
rehearing, February
denial of
knowledge,
arresting
standpoint,
officer’s
with his skill
Stout,
106 Ill. 2d
average
standpoint. People
from an
citizen’s
v.
Here,
into defen-
Stampley
Seinitz chased
Goldman
Officer
defendant in
upon entering
apartment,
saw
dant’s
holding something
quickly
in his hand. Defendant
living room
back
his bedroom. Officer Seinitz followed defendant
walked
to
safety
felony
because he
concerned for his
and believed
was
was
put
object
he
progress. Officer Seinitz then observed
characterized this
holding
was
into a hole in the wall. The
court
given
characterization
disagree
as “neutral conduct.” We
with this
totality
anonymous
The officers were aware of an
circumstances.
tip concerning drug activity
apart-
1409—defendant’s
they arrived,
working “security”
a man
ment. When
officers found
floor,
on the first
and then
codefendants
encountered
officers,
“slickers,”
they yelled
Goldman.
codefendants saw the
When
officers,
bags
drugs
dropped
a term for undercover
then
by the
fled.
ran
followed
officers.
Codefendants
into
in his hand. When
apartment holding something
Defendant
officers,
away from them into a
quickly
defendant saw the
walked
bedroom,
put
where
the item he
holding
into
hole in the
wall. Under these
the officers could reasonably
conclude that defendant was
attempting
hide contraband. This
provided
reasonable
belief
cause for defendant’s arrest. See
(2002) (in
Love,
v.
People
Here, Officer Seinitz’s seizure of cocaine was made pursuant arrest, Further, to a valid as stated above. as Officer Seinitz observed place object wall, holding into a hole in the an immediately control, area within defendant’s Officer Seinitz acted reasonably in searching recovering the area and the narcotics. Therefore, the tried court in granting sup- erred defendant’s motion to press the cocaine recovered Officer Seinitz.
Based on our probable conclusion Officer Seinitz had cause to wall, arrest defendant and unnecessary to search the hole in it is for us to address the State’s alternative assertions that the contraband during proper protective sweep inevitably discovered and that it would have been discovered. judgment reversed,,
Accordingly, the the trial court is and the cause proceedings. is remanded for further
Reversed and remanded.
O’BRIEN, J., concurs. NEVILLE,
JUSTICE dissenting: (1) respectfully dissent in this I believe the case because (2) and used give findings; failed to due deference to the court’s pursuit justify the hot doctrines to circumstances legitimize illegal the search of defendant and arrest findings. The case before trial court this court involves extensive In order granting to understand the trial decision court’s all the trial court’s suppress, motion to think we should examine suppress, hearing Tillman’s motion findings. holding While hearing: during the first following findings court made the the trial police officers finding right now. I believe that the “I make a will they believe they pursuit in hot what they me that tell right to be in the they had a activity, I believe that felony to be of Mr. Goldman they apartment because getting into problem Stampley. I don’t have Mr. actually posture. He of a different is in a little bit Mr. Tillman standing there. got He’s lives there. absolute I don’t have Now, rightfully. there And police they got when the — doing apartment, in the they’re any concern with what and Mr. to Mr. certainly right to make seizures as have Goldman. I think Tillman, though, people and other
Mr. does looking through eyes it fresh see we have to start lawfully something are in happen while the making probable them cause to start seizures. that would Now, me Tillman’s conduct and how that amounts tell about Mr. *** right I’ll have a to be cause? concede that Now, why they seizure of Mr. tell me have a to make there. Tillman. Mr. do before broke the law
What did see Tillman really further it was? to see what
Well, com- if there that I found credible that he was was evidence view, mitting having this plain a crime in we wouldn’t be conversa- ambiguous, Tillman tion. But what I heard about Mr. is somewhat says, ambiguous, being candid. He I don’t because the officer doing he had in his hand. I don’t know what he’s know what exactly.” continuing hearing,
After the trial court made additional find- *7 ings granting suppress: when motion case, Mr. Till-
“In this the do not know what it was that things put may man in that hole. And have been lots of other there put hole. danger than contraband or matters of that the Maybe getting money. rid of Who knows he was some his own actually anything. what it was? It could have It is kind been neutral conduct.
Looking totality ques- this at this in its the Court must answer Mr. tion. a search warrant be issued for Would a warrant —Would hand, I it Tillman with these facts at am not so sure that would. carefully.
I have considered I do not believe that the this somebody’s right home, breaking through destroying have to start dry though people wall even that didn’t live there had run other into the home.
202 They right had a to make people, his seizures of those Ibut think breaking
the exactly knowing walls without what it was looking were for in this Court’s mind go does to the other side the Fourth Amendment for that which is allowed.The motion is al- lowed.”
This case involves an therefore, issue of first impression; it requires an examination of Illinois case question law. The first presented is, in this case Did the majority use the appropriate standard
of review? I think the
question
answer to
this
is no. In
v. Soren-
son,
(2001),
2d
the supreme
pointed
court
out that find-
ings of
only
historical fact should be reviewed
for clear error and that
reviewing
give
courts must
weight
due
to inferences drawn from those
by
Sorenson,
431,
facts
the fact finder.
citing
196 Ill. 2d at
Ornelas v.
690,
States,
699,
United
911, 920,
U.S.
134 L.
Ed.
116 S. Ct.
(1996).
1657, 1663
I
the majority
believe
violated the Sorenson rule
because the majority
weight
failed to
due
to the inferences drawn
from the
by
historical facts
believe, given
the fact finder. I do not
the
totality of the
following findings
the
(1)
court
clearly
were
erroneous:
“[W]hat
that
heard about Tillman
ambiguous”
because the officer said he did not know what Tillman
had in his hand and the officer did not
doing;
know what Tillman was
(2)
that “the
did not know what it
put
was that Tillman
in that
(3)
hole”;
“that
there
things
have been
lots
other than
(4)
contraband”; and
“It is
major-
kind of neutral conduct.” The
ity “disagreed” with the trial court’s characterization of Tillman’s
apartment being
given
totality
activities
“neutral conduct”
majority
disagree
of the circumstances. The
must do more than
According
trial court’s characterization of the
evidence.
Soren-
son,
majority
findings
must find that the trial
clearly
court’s
Sorenson,
431,
States,
erroneous.
Ill. 2d
citing
at
v. United
Ornelas
(1996).
690, 699,
911, 920,
1657,
517 U.S.
134 L. Ed. 2d
116 S. Ct.
By failing
clearly
to make a
finding
commenting
erroneous
before
reversing
and then
the trial
findings,
court’s
has violated
Sorenson,
standard of review rules
followed
Illinois courts.
431,
Ill. 2d
citing Ornelas,
ity
very
“[A]t
[of
of the circumstances.
core
the fourth amend-
ment]
of a man to
home and
stands
retreat
into his own
governmental
Payton v.
there be free from unreasonable
intrusion.”
York,
573, 589-90,
Ed. 2d
S.
New
445 U.S.
63 L.
100 Ct.
right by
police. Officer
Tillman was not afforded this
he saw Mr. Till-
Seinitz testified
entered
*8
fol-
he
hands and that
he had in his
what
man, but he was not sure
of his move-
“because
apartment
of his
Tillman
to the rear
lowed
because
conduct
was neutral
Tillman’s conduct
I
ments.” believe
therefore, he had a
apartment;
the leaseholder
Tillman was
apartment
his
in and move around
right to be
to
amendment
fourth
Tillman’s
A concomitant
police.
from the
without
interference
to
right
his
apartment
the
was
amendment
to be
fourth
the
rights, when
amendment
light of Tillman’s fourth
privacy. In
or consent
a search warrant
or
an arrest warrant
police did not have
running around
walking
even
or
the
to search
following him around
officer
justify police
not
a
apartment
would
searching
for contraband.
apartment
or
cause to arrest
police
probable
majority
The
found that
Tillman was
belief that
officers had a reasonable
because the
Tillman
if
not
police
did
submit
to hide contraband.
attempting
room,
in his
standing
Tillman had in his hand while
know what
as a reasonable
knowledge
not be characterized
their lack of
could
Instead,
police
attempting
to hide contraband.
belief that
Suspicion does not
suspicion.”
“a
commonly
had what
known as
ar-
justification
not a
for
to
provide probable cause
States,
v.
361 U.S.
Henry
Tillman or search his residence.
United
rest
(1959) (rumors,
98, 101, 4 L.
2d
S. Ct.
Ed.
prob-
adequate
are
reports, suspicion
strong
suspect
reason to
arrest).
for
support
able cause to
warrant
exigent circumstances created
majority
argues
also
steps
at-
contraband on the
by
dropping
Tillman’s codefendants
into Till-
by running up
flights
steps
tempting
to elude
Tillman inside his
apartment provided probable cause to arrest
man’s
by the
seen outside the
apartment when
was never
Johnson,
(1983),
supreme
94 Ill. 2d
police. In
separate
for
flight by one defendant
attempted
court held that the
the level
to
suspicion
crime cannot
used
elevate the
be
Johnson,
Ill. 2d
person’s
probable
cause for another
arrest.
cre-
exigent
159.
makes it clear that
circumstances
be
Johnson
police,
are
from the
the crimes or
fleeing
ated
felons
but
apart-
cause to enter Tillman’s
provided probable
circumstances that
to Tillman to
fleeing
imputed
ment and arrest the
felons cannot be
provide
cause for the
to arrest Tillman or search
Johnson,
Finally,
since the
did not
at 159.
crime,
justi-
Tillman’s arrest cannot be
committing
Tillman
observe
warrantless,
after the
nonconsen-
fied
the contraband discovered
Henry,
4 L. Ed. 2d at
entry
361 U.S. at
sual
into his
139,
The argues also it permissible that was for the officers to search Tillman’s residence because feared safety. for their disagree First, for two reasons. it is axiomatic that neither the United States Constitution nor the Illinois Constitution permits *9 safety justification use their as a for their unlimited search of Till- Const., man’s apartment. IV; U.S. amend. Ill. I, § Const. art. 6. Second, in People McPhee, Ill. App. (1993), 3d 102 this court held scope that the pursuant of a search to a valid warrant cannot beyond extend place person be searched and the things to be seized that are McPhee, set out in the warrant. Ill. App. 3d at 109- 10. makes McPhee it clear even police when the have a valid war- rant, scope Therefore, of their search following is limited. reasoning McPhee, of Johnson and police when the enter residence pursuant to exigent they can only arrest the people felons) (suspected exigent (Johnson, who created the circumstances 159), Ill. 2d at and the beyond search cannot extend the area the people creating exigent McPhee, circumstance are found in. Ill. App. 3d at 110. The codefendants who exigent created the circumstances in apprehended this case were living room in apartment; therefore, Tillman’s search should not have beyond McPhee, extended App. room. 256 Ill. 3d at 110. conclusion, although
In
suspected
drug offense,
Tillman was
aof
no
protections.
he is
less entitled to fourth amendment
The fact that
alleged
were in hot
of other felons whose
criminal
activities created
provide probable
circumstances did not
cause
for the
to arrest Tillman or search his
When
warrantless,
entry
home,
make a
person’s
nonconsenual
into a
Johnson and McPhee make it clear
are limited
terms
people they
areas that
can search and the
can seize.
159;
Johnson,
McPhee,
App.
Therefore,
3d at 110.
majority’s
must dissent from the
decision because the
did
due deference to
findings,
Henry,
court’s
Johnson
McPhee make it clear that the
did not have
cause
to arrest Tillman or
4 L.
apartment. Henry,
search
For the affirm the of the trial would decision court.