People v. Condon

• Decision Date: 12 March 1992
• Docket Number: No. 70295,70295
• Citation: 170 Ill.Dec. 271,148 Ill.2d 96,592 N.E.2d 951
• Parties: , 170 Ill.Dec. 271, 60 USLW 2619 The PEOPLE of the State of Illinois, Appellant, v. Timothy CONDON, Appellee.
• Court: Illinois Supreme Court

Page 951

592 N.E.2d 951

148 Ill.2d 96, 170 Ill.Dec. 271, 60

USLW 2619

The PEOPLE of the State of Illinois, Appellant, v. Timothy CONDON, Appellee.

No. 70295.

Supreme Court of Illinois.

March 12, 1992.

Rehearing Denied June 1, 1992.

Neil F. Hartigan and Roland W. Burris, Attys. Gen., Springfield, and James E. Ryan, State's Atty., Wheaton (Kenneth R. Boyle, Norbert J. Goetten, William L. Browers, and Mary Beth Burns, of the Office of the State's Attys. App. Pros., Elgin, of counsel), for the People.

George P. Lynch, Chicago, for appellee.

Justice CUNNINGHAM delivered the opinion of the court:

Following a hearing in the circuit court of Du Page County, defendant's motion to suppress evidence found in his residence was denied by the trial court. After a bench trial, defendant, Timothy Condon, was found guilty of counts of armed violence (Ill.Rev.Stat.1987, ch. 38, par. 33A-2), unlawful possession with intent to deliver cannabis (Ill.Rev.Stat.1987, ch. 56 1/2, par. 705(d)), unlawful possession with intent to deliver cocaine (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401(a)(2)), and unlawful delivery of controlled substances (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401(a)(2)). Defendant received concurrent sentences of 12 years on the armed violence count, 3 years on the unlawful possession of cannabis count, 12 years on the unlawful possession of cocaine count, and 12 years on the unlawful delivery of cocaine count.

Defendant appealed, and the appellate court reversed the order of the circuit court denying defendant's motion to suppress evidence, reversed defendant's armed violence conviction, and also reversed and remanded for a new trial the possession with intent to deliver cocaine, possession with intent to deliver marijuana and unlawful delivery of cocaine counts. (195 Ill.App.3d 815, 142 Ill.Dec. 63, 552 N.E.2d 413.) From that judgment, the State appeals. This court granted leave to appeal pursuant to Supreme Court Rule 315. (134 Ill.2d R. 315.) We affirm the judgment of the appellate court.

On November 6, 1987, at approximately 6:45 p.m., agents of the Du Page County Metropolitan Enforcement Group (DuMEG) executed a search warrant on a residence located at 1 North 535 Swift Road, Lombard, Illinois. Although the home was owned by defendant's brother, Bernard Condon, defendant also resided there.

The complaint on which the search warrant was based was prepared by Barbara Durnil, a DuMEG agent. In that complaint, Agent Durnil set forth her experience as a peace officer and familiarity with drugs and drug dealers. She indicated her information was that Bernard Condon had been arrested on November 7, 1985, for possessing approximately 41.53 grams of cocaine packaged to indicate it was for delivery, and also had in his possession at that time a loaded .22-caliber Baretta semi-automatic pistol. The charges against Bernard Condon for armed violence and unlawful delivery of a controlled substance were still pending at the time of the complaint, and the complaint went on to state that the Condon residence had been under surveillance by DuMEG agents since June of 1987.

The remainder of the information contained in the complaint was told to Agent Durnil by DuMEG Agent Charles Dvorak as follows. An individual identified as Roger Trenton told Agent Dvorak he had purchased cocaine from the Condon brothers at the 1 North 535 Swift Road address over a four-month period. Trenton said the residence contained two closed circuit television cameras, a police scanner to monitor traffic near the residence, and weapons to protect the cocaine and currency. According to Trenton, Bernard Condon brought the cocaine to the residence and sold it from a second-floor office.

Further, Agent Dvorak told Agent Durnil that he had precipitated a "buy" between Trenton and Timothy Condon at the Swift Road location on June 10, 1987, which proved to be cocaine, and that Trenton had again observed the surveillance cameras and police scanner at the residence.

The complaint further indicated that working undercover, Agent Durnil had arranged with Ben Adams to make cocaine purchases for her from the Condon residence on October 21, 1987, and again on November 5, 1987.

In executing the warrant, approximately 12 DuMEG officers wearing bullet-proof vests entered the Condon residence with the aid of a battering ram. According to defendant, the police did not knock, use the doorbell or announce themselves in any way. The State does not contest that the DuMEG officers did not knock and announce.

The defendant filed a motion to suppress evidence, and at the motion hearing, defendant stated he was in the kitchen and heard two loud bangs just before 12 S.W.A.T. officers forcibly entered the house. The defendant acknowledged the presence of surveillance cameras at both the front and rear entrances of the house with a monitor in the kitchen which could be switched back and forth between the two cameras, as well as a police scanner. Although the cameras were on, defendant said it was too dark to see anything on the monitor because no lights were on outside the house.

At oral argument, the State conceded that two unloaded guns were found in a first-floor bedroom. The remaining 11 guns were found in various rooms on the second floor, including a loaded revolver in defendant's bedroom and a loaded pistol in Bernard Condon's office. Defendant testified that most of the other guns were used for hunting, and included 10 shotguns and 1 rifle.

The only evidence offered by the State at the suppression hearing was the complaint for search warrant. In denying the motion to suppress, the trial court found there were exigent circumstances which justified the failure of the officers to knock and announce prior to entering the home.

The issues before us are whether exigent circumstances existed to warrant the unannounced entry and whether defendant was "otherwise armed" under the armed violence law when weapons were found throughout the house.

The State does not contest the defendant's assertion that the officers did not knock or announce their entry to the defendant and the other occupants of the house. The State argues that the totality of the circumstances which the officers faced here constituted sufficient exigent circumstances to excuse the officers' failure to knock and announce. We affirm the appellate court.

Since Illinois has no statutory requirement that officers knock and announce their authority and purpose prior to entering a dwelling, the propriety of such an entry must be determined by constitutional standards. (People v. Ouellette (1979), 78 Ill.2d 511, 516, 36 Ill.Dec. 666, 401 N.E.2d 507.) Although the failure of law enforcement officers to knock and announce is not a per se constitutional violation, the presence or absence of such an announcement is an important consideration in determining whether a subsequent entry to arrest or search is constitutionally reasonable. (People v. Saechao (1989), 129 Ill.2d 522, 531, 136 Ill.Dec. 59, 544 N.E.2d 745; People v. Wolgemuth (1977), 69 Ill.2d 154, 166, 13 Ill.Dec. 40, 370 N.E.2d 1067.) The purpose of the knock-and-announce rule is to notify the person inside of the presence of police and of the impending intrusion, give that person time to respond, avoid violence, and protect privacy as much as possible. (Ouellette, 78 Ill.2d at 518, 36 Ill.Dec. 666, 401 N.E.2d 507.) Officers may be excused from the knock-and-announce requirement if exigent circumstances exist sufficient to justify the intrusion. (Ouellette, 78 Ill.2d at 516, 36 Ill.Dec. 666, 401 N.E.2d 507.) Where exigent circumstances exist, the failure of the police to knock and announce their authority and purpose in the execution of a search warrant for narcotics does not violate the fourth amendment right against unreasonable searches and seizures. (Ouellette, 78 Ill.2d at 516, 36 Ill.Dec. 666, 401 N.E.2d 507.) Exigent circumstances may encompass such considerations as danger to the police officers executing the warrant, or the uselessness of the announcement, or the ease with which the evidence may be destroyed. Ouellette, 78 Ill.2d at 518, 36 Ill.Dec. 666, 401 N.E.2d 507.

The exigent circumstances that the State points to are the presence of cocaine, the existence of surveillance cameras and a police radio scanner, the presence of weapons in the house, and the fact that the defendant's brother, Bernard Condon, was arrested in 1985 with cocaine and a loaded .22-caliber semi-automatic pistol in his possession. The State argues that if these circumstances are viewed synergistically, they must constitute exigent circumstances. While there is a certain appeal to the State's argument, we cannot agree that just because there are a number of circumstances, not one of which standing alone would create an exigency, the sheer volume of circumstances without something more is sufficient to create exigent circumstances. In the instant case, such a view would serve to defeat the purpose of the announcement requirement. The State presented no additional testimony at the suppression hearing. Therefore, our analysis of the exigent circumstances must necessarily center around the facts as presented in the search warrant relied on as the basis for the police officers' decision to enter the Condon residence without knock or announcement.

We must necessarily deal with each potential exigent circumstance individually, since the individual circumstances equal the totality. First, the officers were aware that defendant's brother, who owned the house, had been arrested two years earlier in 1985, with cocaine and a pistol in his possession. There is absolutely no indication from the record, however, that Bernard Condon had exhibited any violent or threatening behavior of any kind at the time of that arrest, and the charges brought in 1985 were still pending at the time of this incident. Only if the officers feared that Bernard Condon would use a gun against...