People v. Petersen

• Decision Date: 30 November 1982
• Docket Number: No. 17683,17683
• Citation: 110 Ill.App.3d 647,66 Ill.Dec. 380,442 N.E.2d 941
• Parties: , 66 Ill.Dec. 380 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth L. PETERSEN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 941

442 N.E.2d 941

110 Ill.App.3d 647, 66 Ill.Dec. 380

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth L. PETERSEN, Defendant-Appellant.

No. 17683.

Appellate Court of Illinois,

Fourth District.

Nov. 30, 1982.

Roger W. Thompson, Lincoln, for defendant-appellant.

Robert J. Barry, State's Atty., Lincoln, Robert J. Biderman, Deputy Director, State's Attys. Appellate Service Com'n, James K. Horstman, Staff Atty., Springfield, for plaintiff-appellee.

LEWIS, Justice:

Following a jury trial, the defendant was found guilty of the offenses of reckless homicide and leaving the scene of an accident involving death. Judgment was entered only on the reckless homicide count, and defendant was sentenced to 6 months' imprisonment in the Logan County jail, placed on 30 months' probation, and ordered to pay court costs in the amount of $445.60.

On appeal, the defendant contends that the police illegally entered a portion of the premises where he resided in search of a hit-and-run vehicle, that his warrantless arrest in his home was unconstitutional and that his automobile was illegally seized by police. Therefore, defendant argues that statements which he made while in custody and the results of an intoxilyzer test administered after his arrest, as well as evidence removed from his automobile, should have been suppressed. Defendant further asserts that since the evidence which led police to believe that his automobile was the car involved in a hit-and-run accident was obtained as a result of a violation of his fourth amendment rights, there was insufficient probable cause for the issuance of a warrant for the performance of skid tests with his automobile, and that, therefore, the results of such tests should also have been suppressed. Defendant finally contends that a gruesome color slide of the victim's body as found at the accident scene should not have been admitted into evidence, and that he was not proved guilty of reckless homicide beyond a reasonable doubt.

At approximately 10:45 p.m. on the evening of August 10, 1981, Trooper Daniel Fruge of the Illinois State Police observed a male body lying on the left side of Ottawa Street in Lincoln. Fruge stopped his vehicle and checked the man's neck and wrists for a pulse, but could not find one. The man was subsequently pronounced dead at the scene and was identified as Ralph E. Lawrence. He had apparently been struck with great force by a motor vehicle, for his body was badly mangled. Fruge immediately notified the Lincoln Police Department, as well as Illinois State Police headquarters, of his discovery. Sergeant William Ritter, Fruge's shift supervisor, was the first to respond to Fruge's call for assistance. He conducted an on-the-scene interview with three witnesses who had seen a gold Monte Carlo with a shattered windshield and heavy frontend damage driving away from the scene of Lawrence's death. In the meantime, the Lincoln Police Department dispatcher received an anonymous telephone tip that the suspected hit-and-run vehicle was at defendant's residence. This information, along with that obtained during Ritter's interview with the three witnesses at the scene, was then broadcast to police cars which were patrolling the city.

Officer Duff Starr and Sergeant Larry Hill, both of the Lincoln Police Department, heard the dispatch relating to the suspected hit-and-run vehicle and arranged to meet each other at defendant's residence, which was a duplex. Sergeant Hill was the first to arrive at defendant's home. He drove his squad car to the back of the duplex and positioned it so that he could see the front end of a heavily damaged automobile parked parallel to a set of railroad tracks which ran alongside the duplex. The car's windshield was partially shattered, the right front grill area was badly smashed, and what appeared to be blood was splattered over the rear of the car. The area surrounding the car was fairly well lit, but Hill nevertheless shined his flashlight on the car in order to view it. Although the suspect vehicle was registered in the name of Lester K. Petersen (defendant's father), Hill was able to associate the car with defendant, whom he had previously seen driving it. Officer Starr stated that when he arrived at defendant's home, he had to walk to the back of the duplex in order to fully observe the damage to the Monte Carlo, although the rear three quarters of the car was visible from the street.

After viewing the damaged vehicle, Starr and Hill went to the rear door of defendant's residence. The door apparently consisted of clear glass, and they could see defendant inside. Sergeant Hill knocked on the door and defendant opened it, stepped back, and allowed Hill to enter. Hill asked the defendant if he had had an accident, to which defendant responded in the affirmative. Hill then took two or three steps into the residence, and advised defendant that he would have to go to the Logan County Public Safety Complex for further investigation. Officer Starr then transported defendant to the complex and Hill remained at the defendant's residence.

Sergeant William Ritter of the Illinois State Police subsequently arrived at defendant's residence and stayed with the vehicle until Corporal Brown from the Vehicle Identification Bureau arrived. Detective Vonderahe of the Lincoln Police Department was also present during this time period and took some photographs of the Monte Carlo. At approximately 1 a.m. on the morning of August 11, 1981, Corporal Wellenkamp, a crime scene technician, arrived. He collected three additional pieces of evidence from the vehicle and took some additional photographs of it. He and Corporal Brown then supervised the towing of the car to an enclosed commercial garage.

We first consider defendant's contention that the warrantless entry of police on the premises where he resided, for the purpose of viewing the suspect vehicle, was illegal. The threshold question which must be answered is, of course, whether the defendant had a legitimate expectation of privacy in the area where the police viewed the Monte Carlo. (See Rakas v. Illinois (1978), 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387.) The constitutionally guaranteed right to be free from warrantless searches extends to the areas of a yard surrounding a dwelling in which the residents have a reasonable expectation that they will be free from unannounced intrusions. (See, e.g., Wattenburg v. United States (9th Cir.1968), 388 F.2d 853.) One does not, however, have a legitimate expectation of privacy in areas surrounding a residence which are visible from neighboring lands (see State v. Pontier (1974), 95 Idaho 707, 518 P.2d 969), even if it is necessary to stand on one's toes or lean around the side of a partition in order to view the area in question. (United States v. McMillion (D.C.1972), 350 F.Supp. 593.) For this reason, a police officer may enter an unenclosed driveway to obtain a closer look at an automobile which is partially visible from the street without violating any reasonable expectation of privacy. See United States v. Humphries (9th Cir.1980), 636 F.2d 1172.

At times, even one's privacy interest in a portion of a premises which is normally subject to fourth amendment protections must yield to compelling public necessity. For instance, police may make a warrantless entry of a house while in hot pursuit of an armed robber (Maryland Penitentiary v. Hayden (1967), 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782), and may enter a dwelling without a warrant to prevent the imminent destruction of evidence (Ker v. California (1963), 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726). In this respect, a case strikingly similar to the case at bar is People v. Morrow (1982), 104 Ill.App.3d 995, 60 Ill.Dec. 747, 433 N.E.2d 985. There, two rape victims provided police with a description of the car in which they had been abducted and identified the garage where some of the rapes took place. The rapes occurred between the hours of 3 and 7 a.m., and police, accompanied by the victims, arrived at the garage at about 11 a.m. the same morning. The yard in which the garage was located was enclosed by a fence which ran along the rear lot line. A detective entered the yard through a gate in the fence. The record did not disclose whether the gate was closed or open at the time of the detective's entry. The detective looked into the garage through an open service door which was on the side of the garage, facing a sidewalk that led from the rear gate to a house near the front of the lot, and saw an automobile which matched the description given by the victims. The detective then called to another officer and they entered the garage, opened the car door and discovered various items of evidence. The court, in rejecting the contention of one of the defendants that the detective's entering the yard and looking through the garage door constituted an illegal search, stated that although entry upon the premises was not made in a "hot pursuit" situation, the officers were certainly engaged in "warm" pursuit. The victims had been released by their abductors only a few hours earlier, and if the garage in question was not the location where some of the rapes occurred, the police needed to know this as soon as possible in order that they could continue their investigation without unnecessary delay. Relying on the principle that a moderate exigency justifies only a petty peaceful intrusion, the court held that the detective's looking into the garage through the open door was justified under the circumstances of the case.

In the present case, as in Morrow, the officers' initial entry on the premises occupied by defendant was of a trivial character. The record contains no indication that the yard surrounding the duplex was fenced, the hit-and-run vehicle was not in a garage or otherwise enclosed, the police did not touch the car and there was no intrusion on a dwelling during...