People v. Burton

Decision Date11 April 2011
Docket NumberNo. 2–09–0747.,2–09–0747.
Citation349 Ill.Dec. 829,409 Ill.App.3d 321,947 N.E.2d 843
PartiesThe PEOPLE of the State of Illinois, Plaintiff–Appellee,v.David D. BURTON, Defendant–Appellant.
CourtUnited States Appellate Court of Illinois


James K. Leven, Attorney at Law (Court-appointed), Chicago, for David D. Burton.

Joseph E. Birkett, DuPage County State's Attorney, Lisa Anne Hoffman, Assistant State's Attorney, Lawrence M. Bauer, Deputy Director, Diane L. Campbell, State's Attorneys Appellate Prosecutor, for People of the State of Illinois.


Presiding Justice JORGENSEN delivered the judgment of the court, with opinion.

On June 3, 2009, after a bench trial, defendant, David D. Burton, was found guilty of unlawful possession of a weapon by a felon (720 ILCS 5/24–1.1(a), (e) (West 2008)), unlawful possession of firearm ammunition by a felon (720 ILCS 5/24–1.1(a), (e) (West 2008)), possession of a firearm without a firearm-owner's identification (FOID) card (430 ILCS 65/2(a)(1), 14(c)(3) (West 2008)), and being an armed habitual criminal (720 ILCS 5/24–1.7(a)(3) (West 2008)). Prior to trial, on April 15, 2009, the trial court denied defendant's motion to quash his arrest and to suppress the weapon that formed the basis of the charges. On appeal, defendant argues that the court erred in denying his motion to suppress, because there was no valid consent for the warrantless search of his coat pocket. For the following reasons, we affirm.


A. Motion to Suppress

The evidence at the hearing on defendant's motion to suppress revealed that, on October 14, 2008, defendant resided at a Carol Stream apartment with his girlfriend of seven years, Candace Garland, and her two children, mother, and three siblings. Defendant resided at the apartment for approximately nine months (from February 2008 until his arrest on October 14, 2008). The apartment contains a front living space, a kitchen, two bedrooms, and a bathroom. At one time, defendant and Garland shared the back bedroom. Both agreed, however, that, as of October 14, 2008, Garland did not share the back bedroom with defendant, i.e., defendant was the only person to use the bedroom. The bedroom contains a closet with two doors such that the closet may be accessed from the bedroom and the bathroom. In the closet is a stacked washing machine and dryer that the apartment's occupants use. Garland kept some clothing and other items in the closet next to the washing machine and closer to the bathroom, and defendant kept all of his clothes on the opposite closet wall, closer to the bedroom and separate from Garland's belongings. Garland's name is on the lease to the apartment; defendant's name is not.

On October 14, 2008, at 8:44 p.m., a radio dispatch alerted Carol Stream police officers John Bucholz and Peter Spizzirri to a possible domestic incident at the apartment. At 8:46 p.m., the officers arrived at the apartment. Garland answered the door and invited the officers inside. Defendant was in the back bedroom, but walked to the front area of the apartment after the officers entered. According to defendant, he was on his cell phone at the time, asking his mother to send over a truck so that he could take his belongings, including his furniture, and leave the apartment. Spizzirri confirmed that he heard defendant on his cell phone making arrangements to leave the residence.

The officers informed Garland that police had received a call from her brother and sister about a domestic disturbance. While there was, apparently, an earlier disagreement between defendant and Garland's sister, both Garland and defendant denied that it was a physical altercation. According to the officers, there were no apparent physical injuries to either

[349 Ill.Dec. 833 , 947 N.E.2d 847]

party and the apartment contents were undisturbed ( i.e., no furniture knocked over or other evidence of a fight). Nevertheless, to make further inquiries, Bucholz walked with Garland toward the kitchen while Spizzirri and defendant remained in the front room. At 8:49 p.m. (three minutes after their arrival), while the officers were separately speaking with Garland and defendant, the dispatcher announced to the officers that there was sensitive information for them and, at 8:52 p.m., the dispatcher informed the officers that, according to Garland's brother and sister, defendant kept a gun and drugs in the apartment, specifically, in a closet/laundry room off of one of the bedrooms and in an attic access panel in the ceiling of that closet.

At that time, Bucholz walked Garland toward the bedroom and explained that there might be a gun and drugs in the closet. Garland appeared surprised and “a little upset” and pointed out the closet to Bucholz. According to Bucholz, Garland told him to “go ahead and search.” Thereafter, Garland signed a consent-to-search form authorizing the officers to search the “apartment.” After Garland signed the form, Bucholz left her in the bedroom and walked to the front room to give the form to Spizzirri, to give to defendant. Bucholz then returned to the bedroom; he was not present when Spizzirri asked defendant to sign the form. Garland testified that she could hear only parts of the conversation and heard defendant say that he was not going to sign the form, because Garland's signature was already on it.

According to Spizzirri, after receiving the radio transmission about a possible weapon and drugs, he, for safety reasons, patted down defendant and instructed him to sit at the kitchen table. Bucholz and Garland walked to the bedroom; Bucholz ultimately returned with a consent-to-search form that he and Garland had already signed. Bucholz gave Spizzirri the form, and Spizzirri told defendant about the dispatch information concerning drugs and weapons. Spizzirri asked defendant to sign the form, and [defendant said] you can search. Go ahead and search. He said, I will not sign the form because I'm not on the lease. I don't see as to why I would have to sign that form if I'm not on the lease.” Spizzirri summarized that, while defendant refused to sign the consent form, he did not refuse consent to search the apartment:

“Q. You also asked for consent to search the apartment?

A. Yes.

Q. And he refused?

A. No, he did not.

Q. He gave you consent?

A. He said, go ahead and search the apartment, but I will not sign the form because I'm not on the lease.”

Defendant testified that, as of the time of the suppression hearing, he had been convicted of seven felonies in nine years and, therefore, he understands his rights. When Spizzirri asked defendant to sign the consent form, “I refused” and “told him no. I told him it wasn't my apartment, really, and he says like, Miss Garland signed the lease. I said, okay. So, why do you need me to sign this?” Defendant further explained that he did not sign the consent form because “I just didn't want to sign it.” He testified that, in response to Spizzirri's verbal request for permission to search the apartment, “I told him no.” Defendant agreed that he told Spizzirri that he (defendant) “had no need” to sign the consent form, because Garland was on the lease and had already signed it.

After bringing the consent form to defendant, Bucholz returned to the bedroom and began searching the closet. According

[349 Ill.Dec. 834 , 947 N.E.2d 848]

to Bucholz, Garland told him that both she and defendant kept personal items in the closet. He began his search with the attic access in the closet, where he found drug-related items, including spoons with white residue on them and a “ Pyrex cup that had been used to cook drugs in.” Spizzirri left defendant in the front room and joined Bucholz in the search. Spizzirri located the gun in a large, men's coat that was hanging in the closest. The coat also contained defendant's birth certificate and an IRS document with defendant's name on it. Defendant was subsequently arrested.

After hearing closing arguments, the trial court denied defendant's motion to suppress. The court found that Garland clearly consented to a search of the entire apartment, but that the State did not meet its burden of establishing that defendant consented to the search. Nevertheless, the court concluded, Garland had the authority to consent to a search of both the bedroom and the closet because it was a common area to which she had access.

Defendant moved the court to reconsider. At oral argument on the motion to reconsider, the court disagreed with defendant that he “expressly refused consent.” The court summarized that the testimony at the suppression hearing included Spizzirri's position that defendant told the officers that they could go ahead and search, but that he would not sign the consent form. While defendant had testified that he neither gave verbal consent to the search nor signed the written consent to search, the court found lacking an “express refusal of consent” to search or a “clear and unequivocal objection” to the search. The court further clarified that it did not find the testimony to reflect that, when expressly asked for consent, defendant said “no.” Instead, the court explained that, while it found that the State did not meet its burden on consent, it had not made specific findings on what defendant did or did not say. He maybe didn't consent, but he didn't object. And I think this case [ Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) ] requires a clear and unequivocal objection.”

B. Trial

As relevant to this appeal, the trial testimony largely mirrored the evidence presented at the suppression hearing. Garland reiterated that, while both she and defendant stored items in the closet, their items were separate and in different parts of the closet. Defendant kept a few coats in the closet; he was the only person to wear the coats—he did not let anyone else borrow them.

Garland's brother, Corey Kirkendoll, age 13, testified that he was not allowed to touch defendant's things...

To continue reading

Request your trial
18 cases
  • State v. Bonilla
    • United States
    • Oregon Supreme Court
    • December 31, 2015
    ...94 A.3d 608 (2014) ; State v. McCaughey, 127 Idaho 669, 671–74, 904 P.2d 939, 941–44 (1995) ; People v. Burton, 409 Ill.App.3d 321, 330–33, 349 Ill.Dec. 829, 947 N.E.2d 843, 852–54 (2011) ; Lee v. State, 849 N.E.2d 602, 610 (Ind.2006) ; State v. Chilson, 38 Kan.App.2d 338, 347, 165 P.3d 304......
  • People v. Rivera
    • United States
    • United States Appellate Court of Illinois
    • April 25, 2011 the remaining balance of the conversation). After a careful analysis of the testimony, we find no error occurred here. [349 Ill.Dec. 829 , 947 N.E.2d 843] M. State's Closing Argument Defendant next contends that it was error when the State directed the jury to conduct its own handwriting......
  • People v. Fillyaw
    • United States
    • United States Appellate Court of Illinois
    • April 20, 2011
  • People v. Butler
    • United States
    • United States Appellate Court of Illinois
    • December 24, 2015
    ...would have understood by an individual's words, acts or conduct, that consent had been granted. People v. Burton, 409 Ill.App.3d 321, 328–29, 349 Ill.Dec. 829, 947 N.E.2d 843 (2011). Here, we find that no reasonable person would have understood that defendant had granted consent for Officer......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT