The People Of The State Of Ill. v. Davis

• Decision Date: 24 February 2010
• Docket Number: No. 2-08-0168.,2-08-0168.
• Citation: 398 Ill.App.3d 940,924 N.E.2d 67,338 Ill.Dec. 207
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Dejuan T. DAVIS, a/k/a Torize Davis, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

398 Ill.App.3d 940
924 N.E.2d 67
338 Ill.Dec. 207

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Dejuan T. DAVIS, a/k/a Torize Davis, Defendant-Appellant.

No. 2-08-0168.

Appellate Court of Illinois,
Second District.

Feb. 24, 2010.

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Thomas A. Lilien, Deputy Defender, Bruce Kirkham, Office of the State Appellate Defender, for Dejuan T. Davis.

Michael J. Waller, Lake County State's Attorney, Stephen E. Norris, Deputy Director, Kelly M. Stacey, State's Attorneys Appellate Prosecutor, for the People.

Presiding Justice ZENOFF delivered the opinion of the court:

On January 17, 2008, defendant, Dejuan T. Davis, also known as Torize Davis, was convicted of two counts of unlawful possession of a controlled substance with the intent to deliver (720 ILCS 570/401(a)(2) (A), (g) (West 2006)) and one count of unlawful possession of cannabis with the intent to deliver (720 ILCS 550/5(d) (West 2006)). He was sentenced to 11 and 5 years' imprisonment, respectively, on the two counts of unlawful possession of a controlled substance with the intent to deliver and 5 years' imprisonment on the count of unlawful possession of cannabis with the intent to deliver, all to run concurrently. Defendant appeals, arguing (1) that the trial court erred in denying his motion to suppress evidence and (2) that he is entitled to an additional day of credit for the time he spent in presentencing custody. For the reasons that follow, we reverse.

BACKGROUND

On October 10, 2007, defendant was indicted on two counts of unlawful possession of a controlled substance with the intent to deliver, one count of unlawful possession of cannabis with the intent to deliver, and one count of aggravated battery

924 N.E.2d 71

As amended, count I alleged that defendant knowingly and unlawfully possessed, with the intent to deliver, more than 15 grams but less than 100 grams of a substance containing cocaine, in violation of section 401(a)(2)(A) of the Illinois Controlled Substances Act (720 ILCS 570/401(a)(2)(A) (West 2006)). As amended, count II alleged that defendant knowingly and unlawfully possessed, with the intent to deliver, a substance containing dextropropoxyphene, in violation of section 401(g) of the Illinois Controlled Substances Act (720 ILCS 570/401(g) (West 2006)). Count III alleged that defendant knowingly possessed, with the intent to deliver, more than 30 grams but less than 500 grams of a substance containing cannabis, in violation of section 5(d) of the Cannabis Control Act (720 ILCS 550/5(d) (West 2006)). Count IV alleged that defendant committed aggravated battery in that he knowingly caused bodily harm to Stephanie Harrison while on a public way, in violation of section 12-4(b)(8) of the Criminal Code of 1961 (720 ILCS 5/12-4(b)(8) (West 2006)).

Defendant filed a motion to suppress evidence on October 17, 2007, seeking to suppress all evidence and statements obtained as a result of the illegal entry into and search of defendant's apartment.

At the hearing on the motion to suppress, Deputy John Willer of the Lake County sheriff's office testified as follows. Early in the afternoon on September 16, 2007, Willer responded to a call to assist Deputy Forlenza regarding a traffic altercation in the area of Academy and Academy Court in Lake Villa, Illinois. Upon arrival, Willer spoke to Stephanie Harrison, who informed him that while she was driving, Nicole Shatley, Shatley's boyfriend Geezie (defendant), and an unknown black male began to follow her in a car. Harrison told Willer that she owed Shatley and defendant money for drugs. Following a short chase, Harrison was cornered by the three and they began to attack her through the windows of her vehicle. According to Harrison, Shatley punched her in the head, while defendant and the other man punched her about her body.

Harrison described Shatley to Willer as a white female with blonde hair, who worked at a local gas station. She described defendant as a black male, but she did not know his real name. Harrison was able to describe the other man only as a young, black male in his early to mid-twenties. Willer knew Shatley and defendant, because he had often stopped, while on patrol, at the gas station where Shatley worked. Willer knew defendant to be the father of Shatley's child, and Willer had often seen defendant with Shatley at the gas station. Harrison also provided Willer with the location of Shatley's apartment in Antioch, Illinois. Harrison informed Willer that one could go to Shatley's apartment at any time of day or night to purchase any sort of illegal drug, including cocaine.

Willer, accompanied by some Antioch police officers and Lake County sheriff's deputies, proceeded to Shatley's apartment, which was located above a business. When he arrived, the windows of the apartment were open and, while standing on the sidewalk underneath one of the windows, he was able to hear two black males speaking to a female. Willer attempted to open the door to the stairs that led to the apartment, but the door was locked.

While Willer was speaking with the other officers, Shatley, accompanied by an older black female, exited through the locked door. The woman with Shatley was later identified as defendant's mother. Willer approached Shatley, explained he was there investigating a battery, and

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asked where defendant was. Shatley told Willer that he was upstairs in the apartment. Shatley was then put in handcuffs, advised that she was being detained because she was under investigation for battery, and placed in the back of a squad car. Defendant's mother took out her cell phone to make a phone call, but Willer stopped her. Defendant's mother then became involved in an argument with Willer and the Antioch officers.

While defendant's mother continued to argue with the Antioch officers, Willer entered the staircase through the door, which an unknown individual had propped open with a newspaper, and proceeded upstairs to a common hallway shared by the two apartments located in the building. Shatley never told him that he did not have permission to enter the building or her apartment.

Willer testified that while standing in the hallway outside Shatley's apartment, he heard through the door a black male saying, “What, Nicole, police. I will be right there.” The door to the apartment then opened and Willer saw defendant. Willer identified defendant as this man. When defendant saw Willer at the door, his eyes widened, his jaw dropped, and he immediately turned and attempted to run from Willer. Defendant was able to take about half a step before Willer stepped into the apartment, grabbed him, and handcuffed him. At the time he grabbed defendant, Willer was approximately four feet inside the threshold of the apartment. At the time Willer entered the apartment, neither Shatley nor defendant had given him permission to enter.

As Willer was handcuffing defendant, he observed another black male run to the right side of the apartment and into what was later discovered to be a bedroom. Willer heard a door close, but did not see exactly where the man ran. Willer also observed some children in the apartment and a woman in her mid-twenties to early thirties, later identified as Latonia Tyler, defendant's sister. Once defendant was handcuffed, Willer passed custody of defendant to another officer.

When he turned around, Willer was confronted by Tyler, who asked Willer what he was doing there, told him to get out, and attempted to physically push Willer out of the apartment. Willer then handcuffed Tyler, sat her on the couch, and, in search of the black male he had seen, proceeded to the only bedroom that had a closed door. Willer described the apartment as consisting of a kitchen, bathroom, living room, and two bedrooms. The bathroom was located right next to the front door, with the kitchen just beyond it. The living room was one large room to the right of the front door. Off of the living room were two bedrooms. Willer observed that the door to the master bedroom was open.

As he approached the closed bedroom door, Willer called for the man to come out but received no response. Willer then drew his weapon because he was unsure of what would happen when he opened the door. Willer opened the door and, as he walked in, noticed a black male, mostly covered by bedding, lying on the bottom bunk of a set of bunk beds. Willer handcuffed the man, and as he proceeded out of the bedroom, looked into the open master bedroom. Willer observed a digital scale with white powder on it on top of a dresser in the master bedroom.

After walking the man out of the apartment building, Willer went to speak to Shatley. Shatley was seated in the back of one of the squad cars. Willer read Shatley the Miranda warnings, told her that he had seen a scale with white powder in the master bedroom, and asked for her consent

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to search the apartment. Shatley consented to a search of the apartment.

During the search of the apartment, Willer located and seized a loaded 9-millimeter handgun with two extra magazines; the digital scale he originally observed; the white powder he originally observed, which field-tested positive for the presence of cocaine; approximately 100 grams of a brown rock-like substance, which field-tested positive for the presence of cocaine; cannabis; a pill bottle with approximately 59 pills, which field-tested positive for hydrocortisone; and a pill bottle containing about 85 to 87 prescription pills.

During Willer's testimony, a video recording of the conversation between Willer and Shatley, during which Shatley consented to the search of the apartment, was played. Upon entering the squad car, Willer read Shatley the Miranda warnings, which she indicated she understood. He then informed her that he had observed a scale with cocaine on it and that he would try to get a search warrant for her...