People v. Bielawski

• Decision Date: 19 January 1994
• Docket Number: No. 2-92-0559,2-92-0559
• Citation: 627 N.E.2d 710,255 Ill.App.3d 635
• Parties: , 194 Ill.Dec. 373 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Christopher BIELAWSKI, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 710

627 N.E.2d 710

255 Ill.App.3d 635, 194 Ill.Dec. 373

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Christopher BIELAWSKI, Defendant-Appellee.

No. 2-92-0559.

Appellate Court of Illinois Second District.

Jan. 19, 1994.

James E. Ryan, DuPage County State's Atty., Wheaton, William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Elgin, Barbara A. Preiner, Supervisor of Appeals, DuPage Co. States Atty's. Office, Wheaton, Lisa A. Hoffman, State's Atty. Appellate Prosecutor, Elgin, for people.

Barry D. Sheppard, Joan M. Kripke, Chicago, for Christopher Bielawski.

Justice COLWELL delivered the opinion of the court:

Defendant, Christopher Bielawski, was charged with unlawful possession of cocaine, a controlled substance, with the intent to deliver (Ill.Rev.Stat.1991, ch. 56 1/2, par. 1401(a)(2) (now 720 ILCS 570/401(a)(2) (West 1992))) and unlawful possession of cannabis with the intent to deliver (Ill.Rev.Stat.1991, ch. 56 1/2, par. 705(e) (now 720 ILCS 550/5(e) (West 1992))). The State appeals a trial court order granting in part defendant's motion to suppress certain evidence police seized, pursuant to a warrant, from defendant's apartment. The trial court found that the police made a valid initial entry but that the warrant was invalid because it was obtained as a result of an illegal second warrantless entry. The trial court suppressed all the evidence seized pursuant to the warrant except that which was in plain view during the valid initial search.

On appeal, the State argues that the trial court erred in invalidating the warrant and suppressing any of the evidence seized thereunder. The State argues that although the second entry was illegal, the warrant was valid under the "independent source" doctrine of Murray v. United States (1988), 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472. We agree with the State that the warrant had a valid and sufficient basis independent of the illegal second search. Therefore, we reverse and remand.

On October 30, 1991, pursuant to a sworn complaint by Westmont police officer Richard Musil, Judge Philip Equi issued a search warrant for defendant's apartment. Earlier that day, Officer Daniel Carlson made a warrantless entry into defendant's apartment. Upon leaving the apartment, Carlson told Musil that controlled substances were present in plain view in the apartment. Both officers entered the apartment to make confirmatory observations. After this second warrantless entry, Musil obtained the warrant and the police seized evidence described therein. Defendant moved to suppress this evidence, arguing that the warrant was invalid because it was the product of the allegedly illegal warrantless searches.

In the complaint for a warrant, Officer Musil stated that he had been a police officer for 15 years and a detective for 10 years and had participated in about 50 narcotics investigations. The information in the complaint was based on his own observations, on the observations of officers acting under his supervision, and on information provided by people that Musil had reason to believe were reliable. The complaint alleged the following facts.

At about 3:39 p.m. on October 30, 1991, Judy Sheridan telephoned the Westmont police department, stating that she was the property manager for the building in which defendant lived. She told the police that, earlier that day, maintenance employee Joe Polka observed that the door to defendant's apartment was open and that it appeared that someone had kicked in the door.

Officer Carlson was assigned to investigate the matter. Upon arriving at defendant's apartment, Carlson noticed that the apartment's front door was open; it was damaged and it appeared to have been kicked open. Carlson called for any occupants. As there was no response, Carlson entered the apartment to "check for occupants, and their safety." While he looked for any occupants, Carlson observed, in plain view, packages containing what appeared to be cannabis and a large clear plastic bag containing a white powdery substance that appeared to be cocaine. He also observed two scales and plastic packaging materials.

Carlson left the apartment and reported his observations to Musil. At 3:50 p.m., Musil and Carlson entered the apartment. Musil observed the same items that Carlson had observed on his initial examination. From his experience, Musil believed that defendant's apartment contained cannabis, cocaine, and scales and packaging materials that were suited to weighing and packaging cannabis and cocaine.

Officer Carlson was the sole witness at the hearing on defendant's motion to suppress. He testified that, between 3:30 p.m. and 3:40 p.m. on October 30, 1991, he went to defendant's apartment after the building's management had notified the police that the door was open, apparently from a forcible entry, and that loud music was coming from inside the apartment. Upon arriving, Carlson saw that the door was open about 8 to 10 inches. The door frame had been "broken out" and pieces of wood lay on the ground. Apparently the door had been forcibly opened. Carlson heard extremely loud music emanating from the apartment.

Carlson went to the door, looked through an opening, and, identifying his office, called into the apartment and asked if anyone was there. He received no response, although the loud music kept playing. Worried that there could be a dead or injured person inside, Carlson entered the apartment to check on the well-being of anyone who might be in the apartment.

Upon entering, Carlson went first to the living room. The loud music was coming from a radio. The furniture and some other items were in disarray. On a coffee table was a white paper plate with a substance that Carlson recognized from his training as cannabis. Carlson searched the room for people but found nobody else in the living room. He proceeded to the kitchen and the dining room. On the dining room table was a package that apparently had been taped up and then ripped open. Protruding from the package were stems that Carlson believed were from cannabis plants.

Thinking that somebody might be on the second floor, Carlson ascended the stairway. Looking into the first of two bedrooms, Carlson concluded that someone had ransacked the room, as the bed was partially dismantled and things were scattered all over the floor. On a shelf near the bed was a digital scale with white powder all over it. From his experience, Carlson believed that the white powder was cocaine. There were also plastic bags that appeared to be the type customarily used to package cocaine.

Carlson saw nobody in the first bedroom. He looked next into a closet between the two bedrooms. Nobody was there, and Carlson proceeded into the second bedroom. Various items were strewn about the floor or tipped over. One of the items on the floor was a scale. Nobody else was in the room.

Carlson concluded nobody was in any immediate danger. He went downstairs and called for his supervisor. He had not touched or moved any of the items in the apartment. Carlson told his supervisor, Sergeant Sticha, of the apparent contraband and drug paraphernalia that he had seen. He asked Sticha for help in obtaining a search warrant for the apartment.

About 10 minutes later, Officer Musil arrived. Carlson told Musil what he had seen inside the apartment. Sticha departed and Musil and Carlson entered the apartment together. Carlson pointed out what he had seen the first time that he had been in the apartment. Musil made notes of what Carlson had showed him, but Musil did not make any further searches. Musil and Carlson exited the apartment. Carlson waited outside as Musil went to obtain a search warrant. After Musil obtained the warrant, police officers returned and executed the warrant. Before the warrant was executed, Carlson had not taken possession of any of the items inside the apartment.

After arguments of counsel, the trial judge made the following factual and legal findings. All of Officer Carlson's testimony was credible. Carlson's initial warrantless entry was lawful under the emergency exception to the fourth amendment's warrant requirement. (See Mincey v. Arizona (1978), 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290; People v. Krueger (1991), 208 Ill.App.3d 897, 907-08, 153 Ill.Dec. 759, 567 N.E.2d 717.) However, after Carlson determined that there was no one in the apartment who needed assistance, the emergency ended and no further entry was authorized. Thus, Musil's entry into the apartment and Carlson's continued presence there unlawfully infringed on defendant's privacy.

The totality of Officer Carlson's observations, which were properly presented to Judge Equi through Officer Musil's complaint, stated the probable cause necessary for a warrant. Moreover, after his first and proper search of the apartment, Officer Carlson fully intended to obtain a warrant. The second unlawful entry did not influence the decision to obtain the warrant. Officer Musil entered the apartment not in an attempt to discern whether a warrant should be sought, but only to obtain a list of items that the police would mention in a warrant application that they had already decided to make.

Officer Carlson had the right to seize the incriminating items that were in plain view on his initial walk through the apartment. These items of evidence would not be suppressed. However, although it was not clear from the warrant that Musil observed anything that Carlson had not observed during the emergency search, Officer Musil's observations during the second and improper entry were also communicated to Judge Equi through the warrant application. The State had not met its admitted burden to prove that Officer Musil's observations did not affect Judge Equi's decision on the warrant application.

The court refused to suppress the items that Officer Carlson could have seized lawfully during his initial inspection of the apartment....