People v. Lomax

• Citation: 975 N.E.2d 115,2012 IL App (1st) 103016,363 Ill.Dec. 313
• Decision Date: 07 August 2012
• Docket Number: No. 1–10–3016.,1–10–3016.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellant, v. Mario LOMAX, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

2012 IL App (1st) 103016
975 N.E.2d 115
363 Ill.Dec. 313

The PEOPLE of the State of Illinois, Plaintiff–Appellant,
v.
Mario LOMAX, Defendant–Appellee.

No. 1–10–3016.

Appellate Court of Illinois,
First District, Sixth Division.

June 29, 2012.
Rehearing Denied Aug. 7, 2012.

[975 N.E.2d 117]

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Janet C. Mahoney, Nancy Colletti, Assistant State's Attorneys, of counsel), for the People.

Abishi C. Cunningham, Jr., Public Defender, Chicago (Harold J. Winston, Assistant Public Defender, of counsel), for appellee.

OPINION
Presiding Justice ROBERT E. GORDON delivered the judgment of the court, with opinion.

[363 Ill.Dec. 315]¶ 1 After being charged with eight counts of unlawful use of a weapon by a felon and one count of being an armed habitual criminal, defendant Mario Lomax (defendant) filed motions to quash the arrest and suppress evidence claiming that the police did not have the authority to enter and search his home without a warrant. After the suppression hearing, the court granted defendant's motions. The State filed a motion to reconsider, which it later supplemented, and the court denied the State's motion. The State appeals. We reverse.

¶ 2 BACKGROUND

¶ 3 On May 7, 2009, the State charged defendant with eight counts of unlawful use of a weapon by a felon, pursuant to section 24–1.1 of the Criminal Code of 1961 (720 ILCS 5/24–1.1(A), (E) (West 2008)) and one count of being an armed habitual criminal, pursuant to section 24–1.7(a) (720 ILCS 5/24–1.7(a) (West 2008)). Defendant subsequently filed motions to quash arrest and suppress evidence on October 22, 2009, arguing that his right to protection from unlawful searches and seizures, pursuant to the fourth amendment of the United States Constitution and article I, section 6, of the Illinois Constitution, had been violated. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. The court held a suppression hearing on June 29, 2010, at which Chicago police officer Andrew Thomas gave the following testimony.

¶ 4 I. Officer Thomas's Testimony

¶ 5 Officer Thomas testified that, on April 25, 2009, he and his partner were directed to a “two flat multiunit” building on South Wells Street in response to multiple calls to 911 from citizens claiming that gunshots had been heard. Officer Thomas testified that his incident report did not state whether the 911 calls had provided a specific unit number at the [363 Ill.Dec. 316]

[975 N.E.2d 118]

South Wells address, but he testified that the calls had specifically stated that the shots had been fired in and around the “first floor rear” unit of the building. Officer Thomas testified that the calls stated that people had heard shots fired both inside and outside of the first-floor rear unit and that a door to the first-floor rear unit had been loudly slammed. The officer further testified that none of the calls had identified a shooter. Officer Thomas testified that the 911 dispatcher continued receiving calls after Officer Thomas and his partner began driving toward the South Wells Street address. Officer Thomas testified that he and his partner tried to arrive at the building as quickly as possible and that they arrived at the building within two to three minutes after receiving the first dispatch call. Officer Thomas described this as a fairly quick response time. Officer Thomas testified that he and his partner were concerned about the serious nature of the calls and that they knew that they needed to arrive at the address as quickly as possible because people might be hurt or in danger.

¶ 6 Officer Thomas testified that, upon arriving at the building, he and his partner approached the door to defendant's apartment, which was the “first floor rear” unit, and he knocked and announced that he and his partner were Chicago police officers. A child between the ages of two to four answered the door, and the officers observed an area inside the apartment. Officer Thomas testified that he observed two adult women and three small children. When asked about the children's ages, Officer Thomas testified that he could not determine exactly how old they were, but speculated that they were most likely between the ages of two to four.

¶ 7 Officer Thomas testified that he told the five individuals to exit the apartment without asking them any questions. Immediately after they exited, Officer Thomas observed defendant and told him to exit the apartment. Officer Thomas testified that he told the occupants to exit the apartment because of the serious nature of the call. Officer Thomas did not observe anyone inside the apartment who was in distress, injured, or in need of medical attention and did not observe any contraband. Officer Thomas and his partner entered the apartment to perform a “visual safety check” to ensure that no one had been shot. There is no issue that the subject apartment belonged to defendant.

¶ 8 The officers searched the bedrooms, bathroom, and main room of the apartment. Officer Thomas testified that in his search of one of the bedrooms, he observed body armor, a pistol holster, pistol belt, and pistol ammunition. Officer Thomas testified that his partner told him that he observed a pistol in the main room of the apartment. Defendant was then taken into custody as the officers conducted a search of the outside of the building. Officer Thomas testified that he observed four spent shell casings on the ground outside of defendant's apartment.

¶ 9 Officer Thomas admitted that he and his partner did not have a warrant to search the apartment and did not receive consent to enter or search the apartment. Officer Thomas testified that he ordered the occupants to exit the apartment and then conducted a search without a warrant because of the serious nature of the 911 calls. He testified that he was worried that someone inside may have been shot and in need of aid. He testified that the he conducted the search pursuant to public safety concerns, and that because the police department had received numerous calls complaining of shots fired, he was concerned that someone was hurt.

¶ 10 The trial court granted defendant's motions to suppress evidence and quash [363 Ill.Dec. 317]

[975 N.E.2d 119]

the arrest. The trial court found that the officers failed to ask the occupants any questions about whether they had made the 911 calls or if anything was wrong before entering the apartment. The trial court further found that the entry was improper because the officers did not receive consent to enter from any occupant, nor did they immediately observe any evidence that an emergency was in progress or that anyone was in distress. The trial court stated that multiple calls to 911 were not enough to allow police officers to conduct warrantless searches of drawers and crawl spaces. The trial court further stated: “So the officer says he responds to a call of shots fired. Maybe it's a legitimate call, maybe not. There are a number of calls that talk about reports coming from [the address]. At least one of them is more specific according to the Officer's testimony. One takes him directly to the apartment in which the defendant is located. Based upon this number of calls, it's now okay for the police to go through your underwear drawer. Let's search. Who knows. Because we have got this call. * * * And maybe somebody is in the crawl space.” Later, at the reconsideration hearings, the prosecutor offered to proffer that, if Officer Thomas were called to testify, he would testify that he and his partner did not search through drawers or crawl spaces. The trial court further found that the children, at most, acquiesced to the officers' command to exit the apartment. The trial court concluded that the officers' actions did not appropriately meet the balance of interests required to allow a warrantless entry and search, in light of the factual situation presented in the case.

¶ 11 II. Reconsideration Hearings

¶ 12 On July 26, 2010, a hearing was held, and the State requested leave to file a motion to reconsider the court's rulings on the motions to quash the arrest and suppress evidence. The trial court found that the police had no basis for selecting defendant's apartment based upon the evidence provided at the suppression hearing, because Officer Thomas and the parties had described the building as “multiunit.” Based upon the use of that term, the trial court concluded that it had been led to believe that the building contained at least 12 units.¹ The trial court reviewed the hearing transcript and concluded the police had no reason for selecting the first-floor rear apartment based on Officer Thomas's description of the building. The trial court did not address the fact that Officer Thomas testified that callers had identified the first-floor rear unit as the location of the complained of gunshots.

¶ 13 In response, the State produced a photograph purportedly of the building to show that the police were justified in determining that defendant's apartment was the one referred to as the “first floor rear” unit in the 911 calls. Upon viewing the photograph, the trial court admitted that the building's layout was different than it had been led to believe based on Officer Thomas's testimony. The trial court criticized the use of the term “multiunit” by Officer Thomas and stated that Officer Thomas should have used the term “two-flat” without adding “multiunit.” The trial court stated that knowing the building's layout made a “world of difference” to its decision regarding the officers' selection of defendant's apartment. However, the trial court pointed out that the photograph was not in evidence and could not be considered in the motion for reconsideration.

[975 N.E.2d 120]

[363 Ill.Dec. 318]¶ 14 The State filed its motion after the hearing, and on August 20, 2010, the State filed a supplemental motion to reconsider. Both the State's original and supplemental motions to reconsider were predicated...