People v. Harrell

• Decision Date: 19 March 1992
• Docket Number: No. 4-91-0320,4-91-0320
• Citation: 168 Ill.Dec. 543,226 Ill.App.3d 866,589 N.E.2d 943
• Parties: , 168 Ill.Dec. 543 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Randy HARRELL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 943

589 N.E.2d 943

226 Ill.App.3d 866, 168 Ill.Dec. 543

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Randy HARRELL, Defendant-Appellant.

No. 4-91-0320.

Appellate Court of Illinois Fourth District.

March 19, 1992.

D. Peter Wise, Metnick, Barewin & Wise, Springfield, for defendant-appellant.

John Turner, State's Atty., Lincoln, Kenneth R. Boyle, Director, State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, Jeffrey K. Davison, Staff Atty., for plaintiff-appellee.

Justice KNECHT delivered the opinion of the court:

The State's Attorney for Logan County charged defendant, Randy Harrell, by information with unlawful possession of more than 500 grams of cannabis (count I) (Ill.Rev.Stat.1989, ch. 56 1/2, par. 704(e)); unlawful possession with intent to deliver more than 500 grams of cannabis (count II) (Ill.Rev.Stat.1989, ch. 56 1/2, par. 705(e)); unlawful possession of less than 15 grams of a controlled substance (cocaine) (count III) (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1402(b)); unlawful use of weapons (count IV) (Ill.Rev.Stat.1989, ch. 38, par. 24-1(a)(7)); and two counts of armed violence (counts V and VI) (Ill.Rev.Stat.1989, ch. 38, par. 33A-2).

Prior to trial, defendant filed a motion to suppress evidence. Defendant alleged that on April 27, 1990, members of the Illinois State Police, without a warrant or his voluntary consent, wrongfully entered and searched his residence, conducted an unconstitutional search of a room other than the one where he was arrested, and unlawfully seized items found in this room.

At the hearing on defendant's motion to suppress, Trooper Mackins testified that on April 27, 1990, he was operating radar on Route 121 and clocked a truck exceeding the speed limit. The driver drove to a house and ran inside. Mackins knocked on the door of the house and asked for the man who just ran inside. He explained to the woman who answered the door (later to be identified as Mrs. Harrell) he had just seen a suspect--who had been speeding--enter the house. She stated if he had a warrant he could search the house. He indicated to her he would be back and testified she appeared to be distraught.

Sergeant Anthony L. Walker testified he overheard a radio transmission by Mackins requesting assistance at a residence in Latham, Illinois. Walker then went to the residence. After speaking with Mackins, he knocked on the door, and Mrs. Harrell, holding a washcloth to her head, answered the door. He advised her Mackins had observed a suspect park a truck in her driveway and run into the house. He testified Mrs. Harrell appeared to have been lying down, and she stated she had a migraine. Mrs. Harrell stated no one else was in the house and responded the truck outside belonged to her son. She indicated she did not know where her son was, and she did not believe he had run into the house while she was lying down. Walker testified she said, "You're welcome to look if you want to." Walker asserted once they were in the house he advised her if she knew where her son was hiding, she should tell them because she would be charged with obstructing justice if she, in fact, had knowledge the man had fled into the residence. He acknowledged the report he had written did not state he was in the house when he told Mrs. Harrell this. Rather, the report indicated he said this to her immediately after she answered the door. However, he testified the report was not in chronological order.

Conversely, Lois Harrell testified she was lying down because she had a migraine when she heard the doorbell. She answered the door, and a trooper asked to see the man who had run into the house. She told the trooper she had been lying down and had not seen or heard anybody run into the house. The trooper responded, "Oh, yep, you did," and said he knew somebody had run into the house. He asked who the truck belonged to and if his name was Randy. She responded he seemed to know all the answers, and he told her he would handle this in another way and left. She lay back down and approximately 15 minutes later the doorbell rang, and there was beating on the door. Three troopers were standing on the porch. She again indicated she had not heard anyone enter the house and asked if they had a warrant. She testified the troopers told her they did not need a warrant, and they had a right to come in. If they found the suspect in the house, they were going to charge her with a felony. She testified she "sort of stepped back and they stepped in the house." She stated she did not give them permission to come into the house.

Once in the house, Walker searched the main floor. Trooper Lindemulder initially searched the basement. When nothing was found, he went to the upstairs bedroom to search. (This search will hereinafter be referred to as the first search.) While looking under a bed, which was raised six inches above the floor, he observed cannabis seeds, a pan with a screen which had cannabis seeds on it, a strong odor of cannabis, and paraphernalia on the shelves adjacent to the bed. This contraband was not removed until after the defendant had been located. He estimated 5 to 10 grams of cannabis and cannabis seeds were discovered in this initial sighting. After he found the cannabis seeds, he noticed a section of paneling which was not properly intact to the wall. He peeled the paneling back and crawled through a narrow passageway which led to an unfinished portion of the attic, where he then observed the defendant. Defendant, while still in the attic, was handcuffed with his hands behind his back. He was escorted downstairs assisted by two troopers, one in front and one in back of him, and placed in Mackins' squad car.

Lindemulder, who stayed in the house while defendant was escorted to the squad car, returned to the area where he had discovered the cannabis and collected it. This recovery was clearly permissible. Walker also returned to this area to search further, in what will be referred to hereinafter as the second search. Because of the strong odor of cannabis, Lindemulder then began to pull objects from under the bed. As he pulled things out, he noticed more cannabis. This "second search" revealed a green Tupperware container containing cannabis, a brown paper bag containing a syringe and three test tubes, several baggies containing cannabis, and a red duffel bag containing several bags of cannabis. A loaded shotgun in a zippered bag (count V) was also found behind the bed. Walker indicated he could not tell it was a shotgun until it was uncased, and he did not know what was inside the red duffel bag until it was opened. Lindemulder testified the amount of cannabis found in this second search was approximately 200 to 250 grams.

After the second search, Walker and Lindemulder went downstairs and called headquarters in an attempt to obtain a search warrant. After waiting about five hours to get a warrant, Walker contacted headquarters again and was instructed to "secure the scene." Walker indicated "secure the scene" actually meant they were to leave the scene. However, the troopers instead decided to finish "the probable cause search of the subject's room" and the area where defendant had been found. No other part of the house was searched. This subsequent "third search" revealed another duffel bag containing cannabis and a sawed-off shotgun. The weapon was found under some clothing on an unused bed (count VI), and the bag was found behind the unused bed. Various containers with cannabis and cocaine also were recovered during this search from the shelves adjacent to the bed, and several bags of cannabis were found in drawers next to the bed.

During the five hours the troopers were trying to obtain a warrant, friends and family arrived at the residence. Mackins was assigned to watch them, and he had a clear view of them. Mrs. Harrell, as well as the guests, were in the living room. Natalie Foster, defendant's sister, was one of the people who came to the house. After the troopers tried to obtain a warrant, they told her they had probable cause to search the defendant's room. She testified the officers did not restrain her movement in the house.

Based on this evidence, the circuit court denied defendant's motion to suppress. Viewed in the totality of the circumstances, the court found Mrs. Harrell gave a voluntary consent and resolved the issue of credibility in favor of the State. Based on the facts--(1) the officer's discovery of contraband in plain view during the first search; (2) the diligent attempt to obtain a warrant; (3) the knowledge individuals were entering the residence; (4) the knowledge contraband could be altered, disposed of, or concealed; and (5) the fact the contraband was found in an area usually controlled by the defendant--the court maintained the officers could have believed exigent circumstances existed justifying their search. Therefore, the court concluded the officers acted reasonably, and the warrantless entry was permissible.

A bench trial was held, and the court again concluded the searches were reasonable. It stated that based on the initial entry and what was found, it was not convinced the officers needed to obtain a search warrant since "search probable cause appeared to exist." Turning to the charges, the judge entered a judgment of guilty on counts I, II, III, IV and VI; and found count V was not proved beyond a reasonable doubt. Thereafter, the court found the judgment on count I was merged with count II, and judgment on count I therefore was vacated and set aside. Defendant was sentenced to six years' incarceration on count II, three years on count III, five years on count IV, and six years on count VI, all to run concurrently.

The defendant appeals, contending (1) the trial court erred in ruling the State Police had obtained consent from Mrs. Harrell to enter the residence, (2) the evidence found by the police during the second...