People v. Alvarado

• Decision Date: 15 December 1994
• Docket Number: No. 4-94-0250,4-94-0250
• Citation: 206 Ill.Dec. 15,644 N.E.2d 783,268 Ill.App.3d 459
• Parties: , 206 Ill.Dec. 15 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Orlando ALVARADO, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 783

644 N.E.2d 783

268 Ill.App.3d 459, 206 Ill.Dec. 15

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Orlando ALVARADO, Defendant-Appellee.

No. 4-94-0250.

Appellate Court of Illinois Fourth District.

Argued Nov. 14, 1994.

Decided Dec. 15, 1994.

Charles G. Reynard, State's Atty., Bloomington, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, Charles F. Mansfield (argued), State's Attys. Appellate Prosecutors, Springfield, for People.

W. Keith Davis (argued), Jennings, Novick, Taseff, Smalley & Davis, Bloomington, for Orlando Alvarado.

Presiding Justice KNECHT delivered the opinion of the court:

The circuit court of McLean County granted defendant Orlando Alvarado's motion to suppress evidence seized from his motel room, finding his consent to search was invalid. The State appeals, and we reverse.

I. FACTS

Defendant was arrested and consented to a search of his motel room, where a large amount of cannabis was seized. He was indicted with unlawful possession of cannabis, unlawful possession of cannabis with intent to deliver, and cannabis trafficking, in violation of sections 4, 5, and 5.1 of the Cannabis Control Act (720 ILCS 550/4, 5, 5.1 (West 1992)). Prior to trial, defendant filed a motion to suppress the evidence, alleging his consent for the search had not been "knowing and voluntary." At the suppression hearing, only the arresting officer and defendant testified. There was no significant conflict in their testimony, and the State presented no further evidence or testimony. The trial court issued a ruling from the bench, and later entered a written order. Because neither party disputes the factual findings of the trial court, the facts as found in the written order are presented in their entirety:

"FINDINGS OF FACT

On October 23, 1993, the defendant Orlando L. Alvarado registered as a guest at the Fairfield Inn located at 202 Landmark Drive in the Town of Normal, in the County of McLean, in the State of Illinois. He was assigned to Room 349. Late in the morning hours of October 24, 1994, a motel maid was performing routine housekeeping duties. She observed no 'Do Not Disturb' sign on the door knob of Room 349. She opened the door and observed that the defendant was not present in the room. She also observed a green leafy substance all over the bed. Apparently believing the substance to be marijuana, she became apprehensive and immediately closed the door. She contacted the motel manager, who promptly called the Normal Police Department.

Officer Martin L. Fogler responded to the Fairfield Inn and conferred briefly outside of Room 349 with the maid and the motel manager. The motel manager then opened the door. As soon as the door was opened a small crack, a strong odor emanated from the room. Officer Fogler identified the odor as that of marijuana. Without entering the room, Fogler peeked in and there, in plain view, was the whole bed covered with marijuana. The police officer and the motel employees then closed the door, and the officer summoned detectives from the Normal Police Department. After several officers from the Normal Police Department arrived, an attempt was made to call the state's attorney's office to obtain a search warrant. Officer Fogler went to the motel office where he was furnished with a copy of the defendant's driver's license which included the defendant's picture.

Officer Fogler then took up a watch outside of Room 349. Within one-half to three-quarters of an hour, a man with a room key in his hand came walking up the hallway toward Room 349. He appeared to be the same man pictured on the copy of the driver's license. Fogler asked the man who he was, and he identified himself as Orlando Alvarado. Motel employees opened the door to Room 350, immediately across the hall from Room 349, and placed the defendant and Officer Fogler in Room 350. Fogler placed handcuffs on the defendant and administered Miranda warnings. The defendant asked to speak with counsel. After some period of time passed, and officers had apparently been unable to secure a search warrant, Fogler asked Alvarado whether he would grant permission for a search. Alvarado said that he would grant permission to Fogler and Lt. Frank Zayas to search Room 349. He executed Defendant's Exhibit 2, a written permission to search form. No search warrant was issued.

Officers subsequently searched Room 349 and seized a large amount of material alleged to be cannabis. It is this material which the defense seeks to have suppressed."

Three facts need clarification. First, the motel manager opened the door to the room at his own initiative, not at the officer's request. Therefore, the initial viewing of the room is not at issue. Second, the attempt to obtain a search warrant was still in progress when the officers asked for defendant's consent to search. The officers informed defendant of this when they requested his consent. Third, defendant consented to the search 14 minutes after he was taken into custody.

The trial court next set out its conclusions of law in the written order:

"CONCLUSIONS OF LAW

Whether a consent is voluntarily given or is coerced is ordinarily a question of fact. [citations] The voluntariness of a consent must be proved by clear and positive testimony which established that there was no actual, or implied duress or coercion. U.S. vs. Tolias, 548 F.2d 277 (9 C.C.A., 1977); People v. Haskell, 41 Ill.2d 25, 241 N.E.2d 430 (1968). The consent must be shown to be unequivocal and specific, and every reasonable presumption is indulged against a waiver of fundamental constitutional rights. [Haskell, 41 Ill.2d at 31, 241 N.E.2d at 433-34.] The fact that Miranda warnings had been given prior to the consent to search is a factor which tends to show voluntariness. People v. DeMorrow, 59 Ill.2d 352, 320 N.E.2d 1 (1974); People v. Shaver, 77 Ill.App.3d 709 , 396 N.E.2d 643 (1979). Although Orlando Alvarado did not demonstrate any resistance to the request of the police for permission to search Room 349, he had previously requested the assistance of counsel. The court finds that this request for the assistance of counsel constituted an assertion by Orlando of his constitutional rights and that inquiring further, following his request for counsel, whether he would be willing to consent to a search renders the consent obtained thereby the product of implied coercion."

The trial court's rationale in its written order differed from its rationale during its bench ruling:

"Well, I have read the case of People v. Shaver, and it is, of course, the responsibility of the People to establish that the consent was voluntarily given, and that it was, and the voluntariness of it must be clear, must be proved by clear and positive testimony that establishes that there was no duress or coercion, either actual or implied.

Now, it is clear that this was taken while the Defendant was, at least, detained. He was not in the station, but he was in Room 350, which is right across the hall from the room in which the forbidden fruit was located, * * * and he was handcuffed, and that also appeared to be a situation that was present in the Shaver case as well. So it does seem to me that at this point he clearly believed that he had to comply with the request of the police officer, and I do think that there is evidence of implied coercion and duress on the part of the police, and I am, therefore, going to grant the motion to suppress the results of the search, and I do find that the permission is not voluntary."

The State now appeals, arguing the trial court erred by (1) requiring the State to prove voluntariness of a consent to search by clear and positive testimony, (2) ruling defendant's consent was vitiated because his consent followed his request for counsel, (3) ruling defendant's consent was involuntary because of a coercive environment, and (4) failing to allow admission of the cannabis under the independent source or inevitable discovery doctrines.

II. DISCUSSION

The voluntariness of a consent to a police search depends on the totality of the circumstances, and a trial court's determination of voluntariness will not be disturbed unless it is clearly unreasonable. (People v. Casazza (1991), 144 Ill.2d 414, 417-18, 163 Ill.Dec. 497, 499, 581 N.E.2d 651, 653.) More generally, a trial court's decision whether to suppress evidence will not be disturbed unless manifestly erroneous. (People v Thompson (1991), 215 Ill.App.3d 514, 519, 159 Ill.Dec. 27, 30, 575 N.E.2d 256, 259.) However, "where neither the facts nor credibility of the witnesses is contested, the issue * * * is a legal question which a reviewing court may consider de novo." In re D.G. (1991), 144 Ill.2d 404, 408-09, 163 Ill.Dec. 494, 495, 581 N.E.2d 648, 649 (determination of whether probable cause exists).

A. Standard of Proof

The State first argues the trial court required the State to meet too high a burden of proof in showing consent. The trial court relied on People v. Haskell (1968), 41 Ill.2d 25, 31, 241 N.E.2d 430, 433-34, which stated:

" '[C]onsent must be proved by clear and positive testimony, and it must be established that there was no duress or coercion, either actual or implied.' [Citations.] The prosecution must show a consent that is 'unequivocal and specific' [citation], 'freely and intelligently given' [citation]. 'Courts indulge every reasonable presumption against waiver of fundamental constitutional rights.' Johnson v. Zerbst [ (1938) ], 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461."

As the language in Haskell and its citation to Zerbst reveal, Haskell was decided at a time when a consent to search was viewed as a waiver of a right akin to a waiver of other fundamental rights accorded a criminal defendant. Therefore, courts believed a consent to search had to be given voluntarily and knowingly, and courts placed a high burden on the State to prove a waiver occurred. However, the United States...