People v. Greene, 2-96-0215

• Decision Date: 30 June 1997
• Docket Number: No. 2-96-0215,2-96-0215
• Citation: 289 Ill.App.3d 796,682 N.E.2d 354,224 Ill.Dec. 793
• Parties: , 224 Ill.Dec. 793 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Powell B. GREENE, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 354

682 N.E.2d 354

289 Ill.App.3d 796, 224 Ill.Dec. 793

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Powell B. GREENE, Defendant-Appellee.

No. 2-96-0215.

Appellate Court of Illinois Second District.

June 30, 1997.

Michael P. Bald, Stephenson County State's Attorney, Freeport, John X. Breslin, Deputy Director, State's Attorneys Appellate Prosecutor, Marshall M. Stevens, State's Attorneys Appellate Prosecutor, Elgin, and John X. Breslin, Deputy Director, Rita Kennedy Mertel, Staff Attorney, State's Attorneys Appellate Prosecutor, Ottawa, for People of State of Illinois.

Jeffrey A. Kline, Rockford, for Powell B. Greene.

Justice INGLIS delivered the opinion of the court:

The State appeals the trial court's order suppressing the evidence of cannabis found during a search under defendant's sofa cushion. The issues on appeal are whether: (1) the police officer was permitted to enter defendant's porch and house to determine whether someone inside was in need of emergency aid, following a 911 hang-up call; and (2) once inside, the police officer was justified in searching under defendant's sofa cushion. We reverse and remand.

On July 25, 1995, defendant, Powell B. Greene, was charged with possession of not more than 2.5 grams of a substance containing cannabis (720 ILCS 550/4(a) (West 1994)). On November 13, 1995, defendant filed a motion to suppress the evidence of the cannabis found during a search of his residence. On that same day, the trial court conducted a hearing on defendant's motion.

Defendant testified that, on July 24, 1995, at about 11:15 p.m., he was watching television in his home when he heard a pounding at his front door. Defendant asked who it was, and they responded, "Police." Defendant looked out and saw two male police officers standing on his front screened porch. In order to enter the screened porch, the officers had broken the eye hook that locked the door to the porch.

An officer told defendant that the police had received a 911 call. Defendant told the officers that he had mistakenly dialed 911 when he was attempting to dial area code 901. One of the officers asked if they could search defendant's residence, but defendant refused to consent to the search. The officer kept talking about the 911 call and said that they wanted to check to see if anyone was harmed. Defendant finally told the officers to "just peep in the house, look in the house. There is no one here but me." One officer walked through the house and then insisted that defendant get up from the couch. The officer reached under a pillow on the couch and found a small amount of marijuana. Defendant had not consented to the officer's search under the pillow.

On cross-examination, defendant testified that there was no odor of cannabis in the house. He also testified that he did not hear the eye hook coming off the screen door or any banging at the screen door. Defendant also testified that he did not put anything under the pillow after the officer arrived at the front door. Defendant admitted that he had told the officer that there was nothing under the pillow and that the lady from 911 called back and that he had let the answering machine pick up the call.

The trial court took judicial notice of the fact that the area code for western Tennessee is 901.

Linda Harnish testified that she is a 911 dispatcher for Stephenson County and that, on July 24, 1995, she received a 911 hang-up call. The 911 system is an enhanced system, which shows the address, phone number, and the resident's name when a call is received. The system also has the capacity to do an instant redial if there is a hang-up call. When the system redialed in the present case, defendant's answering machine answered. The procedure for a hang-up call is immediately to make a "call" ticket and notify the proper police authority of the call. In the present case, the proper police authority was the Stephenson County sheriff's department. Harnish notified the sheriff's department that there was a 911 hang-up call and that there was no response on redial.

On cross-examination, Harnish testified that it is standard operating procedure on all 911 hang-up calls to send an officer to verify that nothing is amiss at that location and that there is not an emergency.

Deputy Patrick McNamer testified that, on July 24, 1995, he was dispatched to go to 8 North Rose Street after a 911 hang-up call. All McNamer knew when he responded was that, after the hang-up, the dispatcher was connected with an answering machine on redial. McNamer parked his vehicle in the street and walked to the front porch. There was neither any furniture nor any other objects on the front porch. The door leading into the house itself was closed. McNamer walked across the porch and knocked on the inner door. He looked in the window on the door and saw defendant watching television in the living room. Defendant came to the door and clicked the dead bolt lock. McNamer held a flashlight on himself to show defendant that he was a police officer. Defendant then walked back to the couch, lifted the cushion, and moved his hand as if he were putting something under the cushion. McNamer did not know whether it was a weapon or contraband.

While defendant was going back to the couch, McNamer knocked harder and said, "Sheriff's Department. Open the door." Defendant returned to the door, unlocked and opened it. McNamer stepped into the doorway and told defendant that he was with the sheriff's department and that they had received a 911 call from defendant's address. Defendant said that he had not called them. McNamer asked if there was anyone else in the house and defendant said that there was not. McNamer asked if they could search the house. Defendant sat down on a chair as he was asked to do, and Deputy Young, who was with McNamer, watched defendant. The house was small, and McNamer did not find anyone else in the house. McNamer again asked defendant if he had called 911 and, this time, defendant said that he may have dialed incorrectly when he was trying to call someone in Tennessee.

McNamer testified that, as he was walking through defendant's home, he noticed a strong odor of burning marijuana. In his training and experience as a deputy, he had smelled marijuana in the past. McNamer believed that defendant had put marijuana under the cushion of the couch. McNamer asked defendant what was under the cushion and defendant responded, "Nothing." McNamer then lifted the cushion and found a small plastic bag which contained a green leafy substance.

On cross-examination, McNamer testified that there was a screen door on the porch. However, the screen door was unlocked. He also testified that it is the sheriff's department's policy always to enter the premises after a 911 hang-up call.

The trial court held that the deputy had no right to enter defendant's porch because there was neither probable cause nor exigent circumstances. Since the deputy had no right to be on the front porch, he had no right to look into defendant's window and observe defendant putting something under the pillow. Therefore, the trial court granted defendant's motion to suppress.

On January 30, 1996, the trial court denied the State's motion to reconsider. In its motion, the court stated,

"Deputy McNamer * * * evidently unhooked the screen door to the screened-in porch * * *.

* * *

* * * McNamer could probably go to the door of the screened-in porch to attempt to raise occupants, but he had no right to unhook the door to the screened-in porch, or then to look through the door window in an attempt to observe illegal conduct."

The State filed a timely certificate of substantial impairment and a timely notice of appeal.

As an initial matter, we note that we may reverse the trial court's determination on a motion to suppress only where it is against the manifest weight of the evidence. People v. Paudel, 244 Ill.App.3d 931, 940, 184 Ill.Dec. 317, 613 N.E.2d 344 (1993). The trial court's function is to determine the witnesses' credibility and weigh the testimony presented at the hearing. Paudel, 244 Ill.App.3d at 940, 184 Ill.Dec. 317, 613 N.E.2d 344. We review questions of law, of course, de novo. People v. Krueger, 175 Ill.2d 60, 64, 221 Ill.Dec. 409, 675 N.E.2d 604 (1996). After reviewing the record, we determine that the trial court's factual findings are not against the manifest weight of the evidence. Thus, we consider the issues raised in this matter to be questions of law and, as such, review them de novo.

We next consider the State's contention that the officers' conduct was justified by exigent circumstances. The fourth amendment proscribes all unreasonable searches and seizures, and warrantless searches of private residences are considered per se unreasonable unless a specifically established and well-defined exception applies. Paudel, 244 Ill.App.3d at 939, 184 Ill.Dec. 317, 613 N.E.2d 344. In the absence of a warrant, exigent circumstances, or consent, the entry into a home is not an authorized act. People v. Swiercz, 104 Ill.App.3d 733, 737, 60 Ill.Dec. 1, 432 N.E.2d 900 (1982).

We have recognized in the context of exigent circumstances that officers may make a warrantless entry into a home where the officers reasonably believe an emergency exists that mandates immediate action to aid persons or property within the home. People v. Speer, 184 Ill.App.3d 730, 738, 133 Ill.Dec. 223, 540 N.E.2d 1089 (1989). Therefore, the critical question is whether a 911 hang-up call with no answer on redial was sufficient for the officers reasonably to believe that an emergency existed within the home that required their assistance.

There is no simple test for determining the reasonableness of the belief that an emergency existed; however, all of the circumstances known to the police at the time of the entry must be considered. Speer, 184 Ill.App.3d at 739, 133 Ill.Dec. 223, 540 N.E.2d 1089. Moreover, we...