People v. Foskey, No. 67926

CourtSupreme Court of Illinois
Writing for the CourtWARD
Citation143 Ill.Dec. 257,554 N.E.2d 192,136 Ill.2d 66
Parties, 143 Ill.Dec. 257 The PEOPLE of the State of Illinois, Appellant, v. Dennis FOSKEY, Appellee.
Decision Date18 April 1990
Docket NumberNo. 67926

Page 192

554 N.E.2d 192
136 Ill.2d 66, 143 Ill.Dec. 257
The PEOPLE of the State of Illinois, Appellant,
v.
Dennis FOSKEY, Appellee.
No. 67926.
Supreme Court of Illinois.
April 18, 1990.

Page 195

[136 Ill.2d 71] [143 Ill.Dec. 260] Neil F. Hartigan, Atty. Gen., Springfield, and Richard M. Daley and Cecil M. Partee, State's Attys., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Inge Fryklund, Renee Goldfarb and Paul Gliatta, Asst. State's Attys., of counsel), for People.

Sam Adam, Terrance Gillespie and Marc Martin, Chicago, for appellee.

Justice WARD delivered the opinion of the court:

The defendant, Dennis Foskey, was convicted by a jury in the circuit court of Cook County of possession of a controlled substance (heroin) with intent to deliver (Ill.Rev.Stat.1985, ch. 56 1/2, par. 1401(a)(1)) and sentenced [136 Ill.2d 72] to 12 years' imprisonment. The defendant, along with two codefendants, had also been indicted for conspiracy (Ill.Rev.Stat.1985, ch. 38, par. 8-2) and solicitation (Ill.Rev.Stat.1985, ch. 38, par. 8-1) to murder a police officer, but was acquitted.

The trial court, finding that exigent circumstances existed, upheld the warrantless arrest of the defendant and denied his pretrial motion to quash the arrest and suppress statements made by him shortly after his arrest. The trial court also granted the State's motion in limine barring the defendant from cross-examining his wife, Sarah, on the ground that certain statements and communications made by her were privileged communications protected under the marital privileges act (Ill.Rev.Stat.1985, ch. 38, par. 155-1 et seq.).

The appellate court held that exigent circumstances did not exist to warrant the arrest of the defendant in his home. (175 Ill.App.3d 638, 125 Ill.Dec. 82, 529 N.E.2d 1158.) It reversed the defendant's conviction and remanded for a new trial, holding that the statement the defendant made shortly after arrest, that the heroin found in the resulting search of the apartment was his, would be inadmissible as the product of an illegal arrest. The court also held that the defendant was improperly denied his sixth amendment right to confrontation when the trial judge granted the State's motion in limine prohibiting the defendant from cross-examining his wife about letters she had sent to him and statements which she had made to him while he was in jail. We granted the State's petition for leave to appeal under our Rule 315 (107 Ill.2d R. 315).

Evidence at the pretrial hearing showed that the defendant's wife, Sarah Foskey, was arrested on December 12, 1984, for

Page 196

[143 Ill.Dec. 261] possession of heroin. Following her arrest, she agreed to supply information on narcotics activity to the Chicago police department, and on December 7 or 8, 1985, Sarah told Officer George Graham that her [136 Ill.2d 73] husband and Virginia and Jose Terrazas were conspiring to kill the officer. During the next few weeks, she provided the details of meetings held at her home, including advising the police that a man named "Jerry" had been hired to murder Officer Graham for $25,000. On January 2, 1986, Sarah identified John Demopoulous as "Jerry" and Demopoulous was arrested. After his arrest, Demopoulous admitted that he had been hired to kill Officer Graham. On the morning of January 3, 1986, Sarah informed Officer Graham that Virginia and Jose Terrazas were returning to their home in Chicago. The police were aware that the Terrazases frequently left the State. That afternoon, the officers decided to coordinate the arrest of all three suspects, apparently to avoid the possibility that any of the suspects would be tipped off and have the opportunity to avoid arrest. No arrest warrants were obtained. On the afternoon of January 3, after a group of officers had arrested the Terrazases, a second group of officers, who had been waiting outside the defendant's home for approximately 45 minutes, was instructed to arrest the defendant.

When the officers went to the door of the defendant's home, they knocked and announced their office. Receiving no response and finding the door open, they entered the apartment. They found the defendant in the bathroom, ordered him to get dressed and placed him under arrest. After the defendant had been handcuffed and read his Miranda rights, Sarah, who had earlier left the apartment, returned. The police asked Sarah to sign a consent-to-search form, which she did. The defendant also signed a consent-to-search form. In the resulting search, the police discovered heroin. When confronted with the drugs, the defendant admitted they were his. The trial court found that probable cause to arrest existed, that exigent circumstances justified the warrantless arrest, and that the resulting confession was valid. [136 Ill.2d 74] As stated, the appellate court reversed, concluding that exigent circumstances did not exist to justify the warrantless arrest and that the defendant's confession should have been suppressed as fruit of an unlawful arrest. 175 Ill.App.3d at 643, 125 Ill.Dec. 82, 529 N.E.2d 1158.

After the defendant's arrest, Sarah visited her husband in jail and wrote to him on several occasions. The alleged contents of the communications were admissions that Sarah had fabricated the story of the conspiracy in order to avoid going to jail herself. Sarah was to testify as the principal witness for the State against the defendant and the Terrazases. The defendant, contending that her letters and conversations with him were inconsistent with her prior statements to the police, was prepared to cross-examine her on the communications. The State, in a motion in limine, argued that the marital privilege (Ill.Rev.Stat.1985, ch. 38, par. 155-1) protected the letters and conversations from disclosure. The court granted the State's motion barring the defendant's cross-examination.

We consider here, first, whether the appellate court erred in holding that exigent circumstances did not exist so as to validate the warrantless arrest, and, second, whether the court erred in holding that the defendant's sixth amendment right to confrontation was superior to the witness' claim of the marital privilege.

Constitutional safeguards in section 6 of article I of the constitution of Illinois and in the fourth amendment to the Constitution of the United States in general prohibit police officers from making warrantless, nonexigent entries into a private residence to make an arrest. (Payton v. New York (1980), 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639; People v. Abney (1980), 81 Ill.2d 159, 41 Ill.Dec. 45, 407 N.E.2d 543.) The fourth amendment does not prohibit officers from entering a home without a warrant if exigent or compelling circumstances justify the entry. (People v. Cobb[136 Ill.2d 75] (1983), 97 Ill.2d 465, 486, 74 Ill.Dec. 1, 455 N.E.2d 31; People v. Abney (1980), 81 Ill.2d 159, 166, 41 Ill.Dec. 45, 407 N.E.2d 543, citing Coolidge v. New Hampshire[143 Ill.Dec. 262]

Page 197

(1971), 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576.) The burden of demonstrating exigent need for a warrantless search or arrest is on the State. United States v. Aquino (10th Cir.1988), 836 F.2d 1268, 1271, citing Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; Welsh v. Wisconsin (1984), 466 U.S. 740, 749-50, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732, 742.

While no list of factors constituting exigent circumstances is exhaustive, this court in People v. White (1987), 117 Ill.2d 194, 111 Ill.Dec. 288, 512 N.E.2d 677 (citing People v. Abney (1980), 81 Ill.2d 159, 41 Ill.Dec. 45, 407 N.E.2d 543, and People v. Yates (1983), 98 Ill.2d 502, 75 Ill.Dec. 188, 456 N.E.2d 1369), set out these factors which may be taken into account in assessing exigency in a particular situation: (1) whether the offense under investigation was recently committed; (2) whether there was any deliberate or unjustifiable delay by the officers during which time a warrant could have been obtained; (3) whether a grave offense is involved, particularly one of violence; (4) whether the suspect was reasonably believed to be armed; (5) whether the police officers were acting upon a clear showing of probable cause; (6) whether there was a likelihood that the suspect would have escaped if not swiftly apprehended; (7) whether there was strong reason to believe that the suspect was on the premises; and (8) whether the police entry, though nonconsensual, was made peaceably.

In determining whether the police acted reasonably, the court must look to the totality of the circumstances confronting the officers at the time the entry was made. (People v. Yates (1983), 98 Ill.2d 502, 515, 75 Ill.Dec. 188, 456 N.E.2d 1369.) The circumstances must militate against delay and justify the officers' decision to proceed without a warrant. (People v. Abney (1980), 81 Ill.2d 159, 168-69, 41 Ill.Dec. 45, 407 N.E.2d 543.) The guiding principle[136 Ill.2d 76] in such cases is reasonableness, and each case must be decided on its own facts. People v. White (1987), 117 Ill.2d 194, 216, 111 Ill.Dec. 288, 512 N.E.2d 677; People v. Abney, 81 Ill.2d at 173-74, 41 Ill.Dec. 45, 407 N.E.2d 543.

As stated, prior to trial the defendant made a motion to quash the arrest and suppress his confession on the ground that the warrantless arrest was illegal. The trial court denied the motion, finding exigent circumstances sufficient to justify the warrantless arrest. Ordinarily, the decision of a trial court on a motion to quash and suppress will not be disturbed by a reviewing court unless that finding is determined to be clearly erroneous. (People v. White (1987), 117 Ill.2d 194, 209, 111 Ill.Dec. 288, 512 N.E.2d 677; People v. Reynolds (1983), 94 Ill.2d 160, 165, 68 Ill.Dec. 122, 445 N.E.2d 766.) When neither the facts nor the credibility of the witnesses is questioned, however, the issue of whether exigent circumstances were present is a legal one and this...

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189 practice notes
  • Williams v. State, No. 4 Sept. Term, 2002.
    • United States
    • Maryland Court of Appeals
    • December 19, 2002
    ...v. Curran, 498 F.2d 30, 34 (9th Cir.1974); People v. Foskey, 175 Ill.App.3d 638, 125 Ill.Dec. 82, 529 N.E.2d 1158, 1161 (1988), aff'd, 136 Ill.2d 66, 143 Ill.Dec. 257, 554 N.E.2d 192 (1990); State v. Hutchins, 116 N.J. 457, 561 A.2d 1142, 1148-49 (1989). "Whereas exigent circumstances are t......
  • State v. James Edward S., No. 19577
    • United States
    • Supreme Court of West Virginia
    • December 12, 1990
    ...806 (1990); People v. Trujillo, 749 P.2d 441 (Colo.App.1987); Scull v. United States, 564 A.2d 1161 (D.C.App.1989); People v. Foskey, 136 Ill.2d 66, 143 Ill.Dec. 257, 554 N.E.2d 192 (1990); Hunt v. Regents of Univ. of Minn., 446 N.W.2d 400 (Minn.App.1989), rev'd on other grounds, 460 N.W.2d......
  • People v. Prinzing, No. 2-07-0724.
    • United States
    • United States Appellate Court of Illinois
    • April 21, 2009
    ...the connection between the illegal search and the collection of evidence from the computers and his statements. See People v. Foskey, 136 Ill.2d 66, 87, 143 Ill.Dec. 257, 554 N.E.2d 192 (1990) (finding that evidence obtained through illegal search and seizure must be suppressed unless there......
  • People v. Wead, No. 1-02-1878.
    • United States
    • United States Appellate Court of Illinois
    • December 23, 2005
    ...L.Ed.2d at 427. Page 243 First, the presence of Miranda warnings alone will not purge the taint from an illegal arrest. People v. Foskey, 136 Ill.2d 66-86, 143 Ill.Dec. 257, 554 N.E.2d 192 (1990). In this case, the evidence establishes that Wead was given Miranda warnings each time he was q......
  • Request a trial to view additional results
188 cases
  • Williams v. State, No. 4 Sept. Term, 2002.
    • United States
    • Maryland Court of Appeals
    • December 19, 2002
    ...v. Curran, 498 F.2d 30, 34 (9th Cir.1974); People v. Foskey, 175 Ill.App.3d 638, 125 Ill.Dec. 82, 529 N.E.2d 1158, 1161 (1988), aff'd, 136 Ill.2d 66, 143 Ill.Dec. 257, 554 N.E.2d 192 (1990); State v. Hutchins, 116 N.J. 457, 561 A.2d 1142, 1148-49 (1989). "Whereas exigent circumstances are t......
  • State v. James Edward S., No. 19577
    • United States
    • Supreme Court of West Virginia
    • December 12, 1990
    ...806 (1990); People v. Trujillo, 749 P.2d 441 (Colo.App.1987); Scull v. United States, 564 A.2d 1161 (D.C.App.1989); People v. Foskey, 136 Ill.2d 66, 143 Ill.Dec. 257, 554 N.E.2d 192 (1990); Hunt v. Regents of Univ. of Minn., 446 N.W.2d 400 (Minn.App.1989), rev'd on other grounds, 460 N.W.2d......
  • People v. Prinzing, No. 2-07-0724.
    • United States
    • United States Appellate Court of Illinois
    • April 21, 2009
    ...the connection between the illegal search and the collection of evidence from the computers and his statements. See People v. Foskey, 136 Ill.2d 66, 87, 143 Ill.Dec. 257, 554 N.E.2d 192 (1990) (finding that evidence obtained through illegal search and seizure must be suppressed unless there......
  • People v. Wead, No. 1-02-1878.
    • United States
    • United States Appellate Court of Illinois
    • December 23, 2005
    ...L.Ed.2d at 427. Page 243 First, the presence of Miranda warnings alone will not purge the taint from an illegal arrest. People v. Foskey, 136 Ill.2d 66-86, 143 Ill.Dec. 257, 554 N.E.2d 192 (1990). In this case, the evidence establishes that Wead was given Miranda warnings each time he was q......
  • Request a trial to view additional results

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