People v. Wolgemuth

• Citation: 43 Ill.App.3d 335,356 N.E.2d 1139,1 Ill.Dec. 857
• Decision Date: 29 October 1976
• Docket Number: No. 75-195,75-195
• Parties: , 1 Ill.Dec. 857 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Danny Ray WOLGEMUTH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1139

356 N.E.2d 1139

43 Ill.App.3d 335, 1 Ill.Dec. 857

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Danny Ray WOLGEMUTH, Defendant-Appellant.

No. 75-195.

Appellate Court of Illinois, Third District.

Oct. 29, 1976.

Rehearing Denied Dec. 1, 1976.

Robert Agostinelli, Asst. State Appellate Defender, Ottawa, Michael Pelletier, Ottawa, of counsel; Richard Steck, Ottawa, wrote brief for defendant-appellant.

James Hinterlong, Ill. State's Attys. Assn., Ottawa, of counsel, for plaintiff-appellee.

STOUDER, Justice.

After a jury trial the defendant, Danny Ray Wolgemuth, was convicted of unlawful possession of a controlled substance. The defendant was sentenced by the circuit court of Rock Island County to a term of imprisonment of not less than one year nor more than three years.

Defendant was indicted for unlawful possession of less than 200 grams of a substance containing a derivative of barbituric acid, a violation of the Controlled Substance Act. (Ill.Rev.Stat.1973, ch. 56 1/2, par. 1402(a)(5).) Defendant moved to suppress all of the evidence against him. The contraband was seized by police when they entered an apartment occupied by defendant after prevailing upon the building owner to open the apartment door for them.

At the hearing on defendant's motion to suppress, the only evidence presented was the testimony of Officer Donald Barker of the Rock Island City Police Department, who had been called by the defense, Officer Barker testified that he had seen a warrant issued by a court in Keokuk, Iowa for the arrest of Danny Ray Wolgemuth for burglary. The Iowa authorities used this arrest warrant to obtain an Illinois search warrant for a residence where they had expected to find Wolgemuth and the fruits of a burglary. The search authorized by the Illinois search warrant proved fruitless. The Iowa police, assisted by Barker, gained entry into the specified residence by climbing through a window but found nothing. Apparently, the Iowa authorities took both the Illinois search warrant and the Iowa arrest warrant back to Keokuk, Iowa when they left.

The next day Mrs. Helen Allen, a parole officer, relayed to Barker a tip that she had received from an anonymous informer who was unknown to Barker. Barker learned from this tip that Wolgemuth resided with a female parolee at a specific address in Rock Island. Barker, Mrs. Allen and Officer Smiley went to the address and climbed the stairs of the building to reach the door of a rear apartment. They knocked on the door for about 10 minutes but no one responded.

The officers checked with some neighbors who indicated they had seen people fitting the descriptions offered by the police going into, but not coming out of the apartment. According to Barker's testimony, these neighbors did not know whether anyone had stayed in the apartment that morning, but they believed the people still lived there.

The officer then went to the manager of the apartment building and had him call the owner. With the owner present the officers knocked on the door a second time for about five minutes. No one responded and no sounds came from inside. The owner then admitted the police. At the hearing Officer Barker did not remember whether any statement was made by the police announcing their authority or purpose as they entered the apartment.

Inside the apartment the police walked through a living area into a bedroom where they found Danny Wolgemuth asleep in a bed with a female parolee. As Officer Smiley took the defendant into custody Officer Barker noticed a table at the foot of the bed. Plastic pill bottles without prescription labels attached were on top of the table. Barker also stepped on pills scattered on the floor which appeared similar to those in the bottles. On closer inspection the officer recognized the pills contained in the bottles as controlled substances available by prescription. Officer Barker thought Wolgemuth close enough to the bottles to grab them. The officer then seized the pill bottles.

At the conclusion of Barker's testimony the People presented no evidence. The court then denied the motion to suppress and the case proceeded to trial. During the trial Helen Allen, Donald Barker and Richard Smiley testified to substantially the same facts disclosed by Barker at the hearing on the motion to suppress.

The defendant contends that the trial court erred when it failed to suppress evidence found in the apartment occupied by him. More particularly, the defendant urges the entry into the apartment was constitutionally impermissible and that therefore his subsequent arrest and the seizure of the drugs were improper.

The People contend the trial court properly denied defendant's motion to suppress since the evidence was found in plain view as an incident to a lawful arrest. It should be noted that since the drugs were in plain view, there was no search incident to the defendant's arrest. Furthermore, the validity of the defendant's arrest depends initially on the propriety of the arresting officers' entry into the premises and subsequent search thereof. Morrison v. United States, 104 U.S.App.D.C. 352, 355, 262 F.2d 449, 452 (1958).

The general subject of warrantless arrests has received some attention by the United States Supreme Court in recent years. (United States v. Watson, 423 U.S. 11, 96 S.Ct. 820, 46 L.Ed.2d 598; Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (White, J dissenting); Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514.) None of the foregoing cases deal specifically with the issue presented on this appeal, but since they do discuss related issues they are of significance both in illustrating the principles involved and in providing a basis for applying the principles to different factual situations.

Not only are we concerned with a warrantless arrest, but in the first instance we are concerned with a warrantless entry and a search of the premises as a condition prior to the arrest itself. The remarks of Justice Stewart in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 premises being entered; five, there is a resolution of the principal problem raised on this appeal, namely, the propriety of a warrantless entry into a private dwelling. In dicta he observed:

'It is clear, then, that the notion that the warrantless entry of a man's house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man's house without warrant The various factors enumerated are relevant of some one of a number of well defined 'exigent circumstances." 403 U.S. at 477-478, 91 S.Ct. at 2044.

He also noted:

'If we were to agree with Mr. Justice WHITE that the police may, whenever they have probable cause, make a warrantless 1131; United States v. Shye (6th Cir. 1974), an arrest, * * * then by the same logic Any search or seizure could be carried out without a warrant, and we would simply have read the Fourth Amendment out of the Constitution. Indeed, if Mr. Justice WHITE is correct that it has generally been assumed that the Fourth Amendment is not violated by 209 Mass. 396, 95 N.E. 868, and held: for purposes of arrest, it might be wise to re-examine the assumption. Such a re-examination would confront us with a grave constitutional question, namely, whether the forceful nighttime entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a felony, under the circumstances where no reason appears why an arrest warrant could not have been sought, is consistent with the Fourth Amendment." 403 U.S. at 480, 91 S.Ct. at 2045.

See Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514, where the government argued that a 9 P.M. warrantless entry and search of Jones' home was justified since the police had probable cause to believe he was committing a felony. The court did not consider this question on its merits since the issue was not raised because the proof showed that the entry was for the purpose of a search not an arrest.

In two recent decisions the United States Supreme Court specifically reserved its decision on the limits or conditions under which a warrantless entry into a premises for making a warrantless arrest is appropriate. In United States v. Santana, ---U.S. ---, 96 S.Ct. 2406, 49 L.Ed.2d 300 and United States v. Watson, 423 U.S. 11, 96 S.Ct. 820, 46 L.Ed.2d 598, the Court held that where the arresting officer had probable cause to believe the person arrested had committed a felony the arrest of such person before entering his home. In Mitchell arrest warrant. The principal issue raised in both cases was the propriety of such procedure, i.e. a warrantless arrest, where there were no exigent or emergency circumstances. In each case the Court ruled that exigent circumstances did not have to exist before a warrantless arrest could be made on probable cause and indicated that such procedure was appropriate in a public place, i.e. a restaurant in the Watson case and in a person's doorway in the Santana case.

At the outset we believe it useful to distinguish the right to seize contraband goods and papers under the authority of a search warrant and the authority to make a seizure under a warrant of arrest. Under the latter a search may follow as an incident to the arrest under warrant whereas a search warrant is a writ of discovery and the arrest of the offender, if any, follows the discovery as an incident ancillary to it. 1 Varon, Searches, Seizures and Immunities 218 (1961).

Most questions involving the fourth amendment relate to search warrants authorizing the search of premises for the purpose of discovering or locating personal property and its seizure. The Fourth Amendment to the United States Constitution provides as...