People v. Franklin

• Decision Date: 24 August 2016
• Docket Number: No. 1–14–0059.,1–14–0059.
• Citation: 62 N.E.3d 1145,407 Ill.Dec. 223
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Marlon FRANKLIN, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

62 N.E.3d 1145

407 Ill.Dec. 223

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Marlon FRANKLIN, Defendant–Appellant.

No. 1–14–0059.

Appellate Court of Illinois, First District, Third Division.

Aug. 24, 2016.

Michael J. Pelletier, Alan D. Goldberg, Patricia Mysza, Cassidey Davis Keilman, and Carolyn R. Klarquist, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, and Haley Peck, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice MASON delivered the judgment of the court, with opinion.

¶ 1 Defendant Marlon Franklin was charged with eight counts of aggravated unlawful use of a weapon (AAUW) and six counts of unlawful use of a weapon by a felon (UUWF). The jury convicted Franklin of two counts of UUWF, and the trial court later sentenced him to two concurrent six-year terms of imprisonment. He appeals, challenging the sufficiency of the evidence to demonstrate his possession of the firearms and the trial court's denial of his motion to suppress evidence. Because we find that the motion to suppress should have been granted, we reverse.

¶ 2 On March 5, 2011, East Hazel Crest police received a call regarding a theft of cash from room 106 of the Super 8 Motel located at 17220 South Halsted Street. Officer Kenneth Vallow and his partner, Officer Hankins, went to room 106 and met Jasmine Ross, the victim of the theft. Ross described the perpetrator as a 26–year–old, 6–foot–3–inch, 300–pound black male going by the nickname “DB.” Ross told the officers they could find “DB” in room 301 and that “DB” was “known to be armed.” As the officers approached room 301, they encountered Franklin leaving the room. After the officers identified themselves, Franklin told the officers that room 301 was rented in his name. When asked if he was known as “DB,” Franklin told the officers that DB was in his room.

¶ 3 Franklin used his keycard to let the officers into the room. Vallow used a towel to prop open the door. Once inside, the officers observed a large man matching Ross's description sleeping on one of the two beds. The man woke up and the officers began questioning him. Meanwhile Franklin remained standing by the window. On the nightstand between the two beds, Vallow observed a clear plastic bag containing a green, leafy substance, which appeared to be cannabis, and handed the bag to Hankins.¹ Vallow did a quick search of the room and the bathroom and noticed nothing was out of place in the bathroom. In particular, Vallow looked at the ceiling tiles in the bathroom, as experience told him that contraband or weapons were often concealed there. The ceiling tiles appeared undisturbed.

¶ 4 Hankins radioed for a drug sniffing dog. Vallow observed that DB (later identified as David Lathan) was becoming “very nervous” and “tense” and that Franklin also became fidgety. DB then jumped over the bed, pushed past the officers, and ran out of the open door of the room. DB ran down the stairs and proceeded to carjack a vehicle from two individuals who were leaving the parking lot. Hankins and Vallow both gave chase, leaving Franklin alone in the room.

¶ 5 A few minutes later, Vallow realized that Franklin was still in the room and returned to room 301. Vallow walked through the still propped open door to see Franklin exiting the bathroom with a “surprised” expression on his face. Franklin did not tell Vallow he was not permitted to enter the room or ask him to leave. Upon examining the bathroom, Vallow observed that the ceiling tiles had been pushed up two inches. Vallow handcuffed Franklin, had him sit on the bed, and inspected the ceiling tiles in the bathroom. Standing on the toilet, Vallow reached up and felt two plastic bags that he believed contained guns. At that point Vallow did not pull the bags down. Vallow brought Franklin down to his squad car, secured him in the back seat, and went back to the room, recovering from above the bathroom ceiling two plastic bags containing a Lorcin .38–caliber automatic weapon, an extra ammunition clip for that weapon, a Hi–Point 9–millimeter firearm with a full clip, and $153 in cash. The cash was returned to Ross and the guns were inventoried. Vallow never observed Franklin in the bathroom or reaching up to the ceiling tiles.

¶ 6 Based on this evidence, the trial court denied Franklin's motion to quash arrest and suppress evidence. The court ruled that the presence of suspect narcotics in plain view was probable cause for Franklin's arrest and that Vallow had probable cause to search the ceiling tiles because of their notable change in the three-minute period during which Vallow left the room.

¶ 7 The matter proceeded to trial and the parties stipulated to Franklin's status as a felon. Vallow's testimony was consistent with his prior testimony on the motion to suppress.

¶ 8 Franklin's motion for a directed verdict was denied, and the defense rested without calling any witnesses or introducing any other evidence. The jury found Franklin guilty on both counts of UUWF.

¶ 9 Franklin's motion for a new trial and his motion to reconsider the ruling on his motion to quash and suppress were denied. The court sentenced Franklin to six years' incarceration.

¶ 10 ANALYSIS

¶ 11 Franklin raises a number of issues relating to the sufficiency of the State's evidence, the trial court's response to a question from the jury and the claimed ineffective assistance of trial counsel. But because it is dispositive, we need only address Franklin's contention that the trial court erred in denying his motion to suppress evidence. On this issue, Franklin first contends that Vallow was not justified in reentering the room after he left to pursue Lathan so that Vallow's “second entry” into the room was without Franklin's consent and not justified by any other exception to the warrant requirement. Franklin further contends that even if Vallow's reentry is deemed consensual, his search of the area above the bathroom ceiling tiles could not be justified as a search incident to Franklin's arrest or by exigent circumstances. The trial court rejected these contentions, finding that Franklin's original consent encompassed Vallow's return to the room and that Vallow had probable cause to arrest Franklin based on the plainly visible bag of cannabis in between the two beds. Further, once Vallow observed that the bathroom ceiling tiles had been disturbed during his brief absence, the court found he had probable cause to search the area above those tiles.

¶ 12 We apply a bifurcated standard of review when reviewing a trial court's decision denying a defendant's motion to quash arrest and suppress evidence. People v. Luedemann, 222 Ill.2d 530, 542, 306 Ill.Dec. 94, 857 N.E.2d 187 (2006). In reviewing questions of fact, we defer to the trial court's factual findings and reverse them only if they are contrary to the manifest weight of evidence. Id. The question of whether, based on the facts as found by the trial court, suppression is warranted is a legal question we review de novo. Id.

¶ 13 The fourth amendment of the United States Constitution protects the rights of people “to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures.” U.S. Const. amend. IV. The Illinois Constitution offers similar protection. Ill. Const. 1970, art. 1, § 6. A warrantless search is per se unconstitutional unless it falls within recognized exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In Illinois the exceptions are (1) probable cause accompanied by exigent circumstances, (2) a search incident to arrest and (3) a search based on consent. People v. Harrell, 226 Ill.App.3d 866, 872, 168 Ill.Dec. 543, 589 N.E.2d 943 (1992). “Consent is not valid unless it is voluntary, and in order for consent to be voluntary, it must be freely given without duress or coercion (express or implied).” People v. LaPoint, 353 Ill.App.3d 328, 332, 288 Ill.Dec. 930, 818 N.E.2d 865 (2004). Generally, whether consent has been freely given is a factual question that the reviewing court will accept unless it is clearly unreasonable. People v. Turnipseed, 274 Ill.App.3d 527, 530, 210 Ill.Dec. 796, 653 N.E.2d 1258 (1995).

¶ 14 We find that Vallow's reentry into Franklin's motel room was consensual. There is no dispute that Franklin consented to Vallow's initial entry into his room. Franklin contends, however, that once the officers accomplished their stated purpose for entering the room, i.e., to find “DB,” their departure to pursue Lathan required Vallow to seek and obtain Franklin's consent before reentering the room. And because (i) there is no evidence that Franklin consented to what he characterizes as the second entry and (ii) no other exception to the warrant requirement exists, his motion to suppress the recovered weapons should have been granted.

¶ 15 We disagree with the premise of Franklin's argument that there were two entries into his room, one consensual and one without consent. On the facts presented here, we find that there was one consensual search and that the interruption of the search as a result of Lathan's flight did not render Vallow's reentry nonconsensual.

¶ 16 An analogous situation was presented in People v. Logsdon, 208 Ill.App.3d 989, 153 Ill.Dec. 788, 567 N.E.2d 746 (1991). In Logsdon, the defendant, who was hospitalized, asked the police to search her home because she was concerned that her ex-husband, who had been harassing her, was planning to break-in. Id. at 991, 153 Ill.Dec. 788, 567 N.E.2d 746. In response to defendant's request, a police officer went to her home and found pry marks on the kitchen door and chipped wood next to the lock. Id. The door was also unlocked. Id. Upon entry, the officer searched each room and ultimately came upon a cubbyhole containing a clear plastic bag of what appeared to be cannabis. Id. The...