People v. Clendenin

• Decision Date: 23 September 2010
• Docket Number: No. 109184.,109184.
• Citation: 238 Ill.2d 302,345 Ill.Dec. 467,939 N.E.2d 310
• Parties: The PEOPLE of the State of Illinois, Appellant,v.Charles E. CLENDENIN, Appellee.
• Court: Illinois Supreme Court

238 Ill.2d 302
939 N.E.2d 310
345 Ill.Dec. 467

The PEOPLE of the State of Illinois, Appellant,
v.
Charles E. CLENDENIN, Appellee.

No. 109184.

Supreme Court of Illinois.

Sept. 23, 2010.

[939 N.E.2d 312]

Lisa Madigan, Atty. Gen. of Springfield, John A. Barsanti, State's Atty., of St. Charles (Michael A. Scodro, Solicitor Gen., Michael M. Glick, Stephen M. Soltanzadeh, Asst. Attorneys Gen., of Chicago, Patrick Delfino, Stephen E. Norris, Rebecca E. McCormick, of Office of State's Atty. Appellate Prosecutor, of Mt. Vernon, of counsel), for the People.Stephen A. Brundage, of Wheaton, for appellant.

[345 Ill.Dec. 469 , 238 Ill.2d 304] OPINION Justice FREEMAN delivered the judgment of the court, with opinion.

Following a bench trial in the circuit court of Kane County, defendant, Charles E. Clendenin, was convicted of unlawful possession of child pornography (720 ILCS 5/11–20.1(a)(6) (West 2002)). The appellate court reversed and remanded. 395 Ill.App.3d 412, 338 Ill.Dec. 256, 924 N.E.2d 462. We granted the State's petition for leave to appeal. 210 Ill.2d R. 315(a). For the reasons that follow, we reverse the judgment of the appellate court and remand this cause to that court for further proceedings consistent with this opinion.

BACKGROUND

On September 5, 2003, defendant was charged by information with unlawful possession of child pornography,[238 Ill.2d 305] in that he knowingly possessed a video clip of a female child under the age of 18 years engaged in an act of sexual penetration (720 ILCS 5/11–20.1(a)(6) (West 2002)).

A. Defendant's Motion to Quash and Suppress

Defendant filed a motion to quash his arrest and suppress evidence. He argued that his right to be free from unreasonable searches and seizures guaranteed under the fourth amendment to the United States Constitution (U.S. Const., amend. IV) ¹ was violated when his girlfriend, Ellen Bailey, removed items from his home and gave them to police for further investigation, ultimately resulting in his arrest.

At the hearing on defendant's motion, Bailey testified that defendant lived next door to her in St. Charles, and they had a romantic relationship. The couple had exchanged keys to their residences with the understanding that each could enter when the other was not present. On August 29, 2003, Bailey entered defendant's home while he was on vacation to water his plants and to retrieve a vacuum cleaner she had previously left there. During her visit, Bailey saw four wires next to defendant's computer which had small camera lenses attached to the ends. She became concerned because defendant had recently purchased a webcam for her daughters,

[345 Ill.Dec. 470 , 939 N.E.2d 313]

and questioned whether these cameras were somehow related to it. Her suspicions prompted her to look behind the computer, and she discovered a closed, zippered case which contained approximately 50 computer discs, some labeled with handwritten dates. Unsure whether there was a connection between what was recorded on the discs and the small cameras, Bailey took the case and the [238 Ill.2d 306] cameras back to her home. Upon playing a few of the discs in her computer, she discovered one with a list of titles that were “very disturbing,” including “ ‘mother f* * *s 8–year–old.’ ” Bailey viewed one of the disc's image files, which depicted a “grown man having sex with a 13–year–old.” Believing the disc to contain child pornography, Bailey kept it, along with the cameras. She returned the remainder of the discs and the case to defendant's home.

On September 1, 2003, Bailey met with Bruce Malkin, a commander with the West Chicago police department and a personal friend. Bailey recounted to Malkin the circumstances of her discovery of the cameras and computer discs, and told him that the images on the disc caused her great concern. She then gave the items to Malkin. Bailey was thereafter contacted by St. Charles police officer Andrew Lamela. Bailey provided Lamela with the same information that she had given to Malkin regarding the circumstances of her discovery of the disc and its contents.

Commander Malkin's testimony mirrored Bailey's regarding her discovery and viewing of the disc. Bailey told him that the disc contained “what she suspected to be child pornography.” Malkin used his own computer to view the disc, which was marked with the handwritten date of “20 November 2,” and discovered a video clip he believed to be child pornography.

The final witness was Detective Lamela, who spoke with Bailey on September 2, 2003, and received the same background information she had provided to Malkin. The next day, Lamela met with Malkin, who gave him the disc and cameras Bailey removed from defendant's residence. After viewing the disc, Lamela determined that it contained child pornography. He contacted the State's Attorney's office, which advised him that he had probable cause to arrest defendant. After Lamela took defendant into custody, defendant gave an oral statement,[238 Ill.2d 307] which Lamela summarized in a police report. Defendant thereafter provided a second statement, which Lamela recorded on audiotape and had transcribed. Defendant also consented to a police search of his home and computer media.

The circuit court denied defendant's motion to quash and suppress. Because Bailey was not acting as an agent of the police when she removed the disc and cameras from defendant's home, the court held that there was no state action involved in the police's acquisition of those items which implicated the fourth amendment. The court further held that the content of the disc provided police with probable cause to arrest defendant. Defendant filed a motion to reconsider, which the circuit court denied.

B. Stipulated Bench Trial

During a September 2004 pretrial hearing, defense counsel informed the circuit court that defendant wished to “waive the right to a jury and present a stipulation to you and have you decide the defendant's guilt on the basis of our stipulated evidence.” ² Defense counsel also stated for the record that within the stipulation he was “renewing” his objection to the circuit court's denial of the suppression motion

[345 Ill.Dec. 471 , 939 N.E.2d 314]

and “requesting the court to reconsider * * * as if we were having all the witnesses come to court.” The circuit court took the stipulation under advisement.

The court informed the parties on January 13, 2005, that it would not accept the stipulation as drafted.³ The parties then submitted the following amended stipulation on March 16, 2005:

“STIPULATION

NOW COME the parties to this cause and hereby stipulate to the availability of the following evidence for [238 Ill.2d 308] purposes of proceeding with a bench trial of the charge of unlawful possession of child pornography alleged in the Complaint for Preliminary Hearing.

The parties agree that the witnesses called at the hearing on the defense Motion to Quash Arrest and Suppress Evidence held on January 23, 2004 would provide the same testimony that was presented on that date, including the introduction of the same exhibits. The State moves for admission of photographs of the video clip referred to in the Complaint for Preliminary Hearing, marked People's Exhibits # 1 & 2. The photographs portray a portion of one of the video clips contained on the computer disk taken from [defendant's] apartment by Ellen Bailey on August 29, 2003 and delivered to the West Chicago Police by Ellen Bailey on September 1, 2003. [Defendant] objects to the introduction into evidence of People's Exhibits # 1 & 2 on the same grounds presented at the hearing on the defense Motion to Quash Arrest and Suppress Evidence and the subsequent Motion to Reconsider. [Defendant] requests the Court to reconsider and reverse its previous rulings concerning the admissibility of this evidence.

If called as a witness, [Detective Lamela] would testify that he interviewed [defendant] on September 3, 2003 following his arrest in this case. After waiving his Miranda rights, [defendant] stated that he logs on to the internet to a website from which he downloads music and pornography. He typed [sic ] in keywords for the pornography in the search engine and then downloads all the files to his hard drive. Later, he transfers the files to a disk and then views them. He does not know what he downloads until the file has been viewed. He admitted to possessing six disks containing pornography in his apartment. When asked if he knew how many video clips of child pornography were contained on the disks, he stated, “Not very many.” He last downloaded pornography from the website on the preceding weekend. He stated that he did not have time to transfer those files to a disk and did not know what files were downloaded. [Defendant] identified the disk provided to the West Chicago Police Department by Ellen Bailey as belonging to him. [Defendant] denied manufacturing or distributing the child pornography video clips. The police [238 Ill.2d 309] seized seventy-seven (77) compact disks from [defendant's] residence, of which five (5) contained pornography, including adult pornography. The remainder of the disks contained music and information from [defendant's] employment.⁴

The introduction of the testimony of Detective Lamela would be subject to

[345 Ill.Dec. 472 , 939 N.E.2d 315]

[defendant's] objection on the same grounds presented in the defense Motion to Quash Arrest and Suppress Evidence and the subsequent Motion to Reconsider. [Defendant] requests the Court to reconsider and reverse its previous rulings concerning the admissibility of this evidence. [Defendant] objects to all evidence seized by the St. Charles Police Department from [defendant's] residence and to the statements made by [defendant] to the police because the evidence constitutes the illegal fruit of the unlawful search and seizure of the computer disk delivered to the police by Ellen Bailey.

[Defendant] does not stipulate to the sufficiency of the evidence to...