People v. McCollum
| Decision Date | 25 July 2019 |
| Docket Number | No. 2-18-0048,2-18-0048 |
| Citation | 2019 IL App (2d) 18 -0048-U |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JANINE D. McCOLLUM, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of McHenry County.
Honorable Sharon L. Prather, Judge, Presiding.
¶ 1 Held: The trial court's findings on defendant's motion to suppress and quash the warrant were not against the manifest weight of the evidence. Therefore, we affirmed.
¶ 2 The State brings this interlocutory appeal from the trial court's order suppressing evidence and quashing the search warrant in favor of defendant, Janine D. McCollum. It argues that exigent circumstances justified its search and, in the alternative, exigent circumstances were unnecessary because the search warrant was unconnected to the police officers' entry into defendant's home. We affirm.
¶ 4 On January 7, 2016, a grand jury returned a nine-count indictment against defendant, including counts for unlawful possession of cannabis between 30 and 500 grams with intent to deliver (720 ILCS 550/5(d) (West 2014)) (Class 3 felony), unlawful possession of cannabis between 30 and 500 grams (720 ILCS 550/4(d) (West 2014)) (Class 4 felony), and several misdemeanor offenses. Defendant filed a motion to suppress evidence and quash search warrant, arguing that the police officers conducted a nonconsensual, warrantless search of her home in violation of the Fourth Amendment. She also argued that no exigent circumstances existed.
¶ 5 On October 12, 2017, the court heard defendant's motion. Defendant first called her daughter, Madison McCollum, and she testified as follows. She was 21 years old, and she had been living with defendant at her home on Chadwick Lane. Her two younger sisters also resided at defendant's home. The home was two stories and had five bedrooms, and it was on a suburban street with other homes around it.
¶ 6 Madison was at home on December 9, 2015, along with her mother and one of her sisters. At that time, she was four-and-a-half months pregnant. She heard a knock on the front door around 6:30 p.m., and she answered the door. The door opened inward, and she opened it enough to peek out with her head. Nobody had identified themselves yet, but she could see that it was the police. They asked if she was Madison McCollum, and she responded yes. She agreed to talk with the officers and stepped outside onto the porch. She closed the door behind her.
¶ 7 The police informed her that they had received a Crime Stoppers tip that she was dealing drugs and that there was marijuana inside the house. She denied both. To her knowledge, there was no smell of marijuana in the house. She knew the smell of marijuana because she hadsmoked it in high school. There were six cats living in the house, and several of the cats had problems with continence: "they pee[d] all over."
¶ 8 Madison went back into the house to get defendant. When she tried to shut the front door, the police stopped her because they said she was not allowed to close it. One officer put his foot into the foyer to block the door from closing, and he had his hand on the door. She responded that she had to close the door because if she did not, the cats would escape. The officers said no, and one of the cats escaped through the front door.
¶ 9 After the cat got out, Madison went after it, telling the officers she would be right back. One officer followed her to help her retrieve the cat, and the other officers entered the home. After about five minutes, she recovered the cat from under a car in the driveway. While she was outside, she heard defendant yelling "do not enter my home."
¶ 10 Defendant testified next as follows. She had resided on Chadwick Lane in Lake in the Hills since June 2001. Around 6:30 p.m. on December 9, 2015, she was home with two of her daughters, and one of them told her that law enforcement officers were at the door. She was upstairs at the time, and she was not fully dressed. She yelled not to come into her house, and then she heard that the cat had escaped. At that point, she ran downstairs, and an officer was standing in the foyer. On the way down, she told the officer multiple times not to come into her home.
¶ 11 When defendant got downstairs, she saw that the front door was open. The officer did not leave her home, and at least two others entered. She asked what they were doing in her home and told them that they were not allowed to come inside. They refused to leave and said they needed to search her house. She denied carrying a backpack or giving the officers a backpack.
¶ 12 She asked the officers for a search warrant, and they said they did not need one. The officers then proceeded to look through her house for about half an hour, in what they said was a protective sweep. They searched "everywhere," including in closets, under beds, behind doors, in the medicine cabinet, and in a small drawer with a makeup mirror. She followed them during part of their sweep. During their half-hour sweep, the police found approximately 43 grams1 of cannabis in the master bedroom closet. The cannabis was found in a jar underneath "a bunch of stuff, like clothes." After the officers found the cannabis, they laughed. They said they got what they needed and that one of them was going to get a warrant. Only after the officers found cannabis did they inform defendant that they would obtain a warrant.
¶ 13 After the officers' sweep and their discovery of cannabis, defendant's boyfriend, Ryan Malone, arrived at the residence. He told the officers they needed a warrant. The officers said one person was leaving to obtain the warrant, and they instructed everyone to remain outside of the house. Defendant and her daughters left the house and remained outside for at least several hours. The officers obtained a warrant sometime around 8:00 or 8:15 p.m. To her knowledge, the officers did not discover any evidence to be used against her that they had not already discovered before obtaining the search warrant.
¶ 14 After the State's motion for a directed finding was denied, the State called Officer Jason Draftz, who testified as follows. He was a detective assigned to the McHenry County sheriff's narcotics unit. His training included the detection of cannabis based on sight and odor.
¶ 15 On October 24, 2015, the Lake in the Hills police department received an anonymous tip from Crime Stoppers that defendant's family was dealing drugs from their home. On December 9, 2015, he and officers Muraski, Fields, and Woods traveled to defendant's home to follow up on the tip. Madison answered the front door, and the door was "wide open," as far as it could be opened. He identified "a strong odor of fresh cannabis emanating from inside the residence," based on his training and experience. He told Madison that he smelled cannabis, and she responded that the smell was cat pee. Shortly thereafter, a cat exited through the door, and Madison chased after it toward the driveway. The door remained open while she chased the cat.
¶ 16 Once Madison had secured the cat, she took it back inside and tried to close the door. He then advised her that he had probable cause to apply for a search warrant and that the officers were going to secure the residence. At that time, he stepped away from the house to contact the State's Attorney's office to begin the process of applying for a search warrant. A State's Attorney gave them permission to enter the residence to secure it. He did not enter the home until the State's Attorney gave permission. To his knowledge, defendant never told anyone to leave her home. On cross-examination, Draftz denied talking to Madison after she left the house to retrieve the cat, and he stated that he went to call the State's Attorney's office once Madison went to retrieve the cat.
¶ 17 Officer Eric Woods assisted Draftz with the investigation of defendant's home, and he testified as follows. He was trained in the investigation and detection of drugs, including cannabis. He was trained to tell the difference between the odors of fresh and burnt cannabis. He stood by the garage while Draftz initially went to defendant's front door. He first noticed the odor of cannabis when Madison left the residence to chase a cat. After Draftz stepped away from the door, Woods approached it, and he smelled a stronger odor of fresh cannabis coming frominside the home. He began speaking with Madison and asked who else was home. She replied that her sisters were inside, and he asked her to have whoever was inside come downstairs. Madison then went upstairs, and he could hear two females talking. She was out of his view for about 30 to 45 seconds. At that time, he entered the residence. Based on his training and experience, he was worried that evidence was being destroyed.
¶ 18 As soon as he entered, he saw defendant and Madison walking down the stairs. Defendant was carrying a backpack. She held the backpack out and said that this is probably what he was smelling, and she said the backpack belonged to her boyfriend. Nobody went through the backpack at the time, but he believed that eventually the police found cannabis residue or a smoking pipe in the backpack.
¶ 19 She set the backpack down, and he started a conversation with her. He asked if there were other people in the house, and she replied there were only the cats. Woods continued to hear noises inside the house, and he asked defendant to walk him around the house to verify nobody else was home. She was "fine with it," and she escorted him upstairs to her bedroom. When they got there, she was nervous. She pointed to a small amount of weed on a shelf...
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