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People v. Wimbley, No. 1-98-3632

1st District, May 30, 2000

FIRST DIVISION

PRESIDING JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Following a bench trial, defendant Albert Wimbley was found guilty of possession of a controlled substance with intent todeliver and sentenced to a nine-year prison term concurrent to a one-year prison term after his probation was revoked incase No. 96 CR 11878 (possession of a controlled substance). On appeal, defendant only contests the ruling of the trialcourt denying his motion to quash arrest and suppress evidence. Defendant contends that the trial court erred in denying hismotion to quash, arguing that exigent circumstances did not justify the forced warrantless entry by the police into theapartment occupied by defendant. The parties agreed to have the merits of defendant's motion determined simultaneouslywith the evidence at trial. The record fails to demonstrate exigent circumstances to justify the warrantless entry. We reverse.

FACTS

The only witness to testify for the prosecution was Chicago police officer James Polaski. He stated that about 5:15 a.m. onDecember 14, 1996, he was in the area of 4500 West Jackson Boulevard in Chicago with four other police officers. OfficerPolaski testified that he had been a police officer for about 18 months, was wearing plain clothes and driving an unmarkedvehicle. The officers made a street stop of L.C. Ball. Officer Polaski stated that he had never previously met Ball. Ball toldOfficer Polaski that narcotics were coming out of the basement apartment at 4531 West Jackson Boulevard. Officer Polaskiand his partner then took Ball to the back door of the basement apartment at 4531 West Jackson Boulevard. The area aroundthe doorway was open and about five steps led from the sidewalk level down to the door. Lights were on in a nearby alley,but no light was on above the door. A total of six to eight officers were present. Officer Polaski stood behind Ball, aboutfive feet from the door. Officer Polaski told Ball to knock on the door of the apartment. When defendant answered the door,Ball stated that he "needed one." Officer Polaski saw that defendant was holding a small packet of crushed green plantwhich Polaski believed to be cannabis. Defendant replied that he was out and slammed the door. Officer Polaski testifiedthat he and his partner kicked the door open seconds later.

Entering the apartment, Officer Polaski picked up the bag of cannabis from the floor and arrested defendant. Officer Polaskirecovered a loaded 9 millimeter handgun magazine from a table about seven feet from the door and also found on a nearbywindowsill a loaded 9 millimeter handgun, $110, and a clear plastic bag. Inside the bag were 160 smaller packetscontaining a white rock-like substance. Officer Polaski testified that defendant stated that he stayed in the apartment andgave his verbal consent to a search. Upon searching the apartment, the officers found a digital scale and additional rounds ofammunition. The parties stipulated that a forensic chemist weighed and tested 89 out of the 160 packets and determinedthey contained 16.493 grams of cocaine. The plant material was determined to be 1.2 grams of cannabis.

In the defendant's case L.C. Ball testified that he was arrested at 4500 West Jackson Boulevard by two police officers. Balldenied that he voluntarily agreed to take the officers to the apartment. The officers told Ball to knock on the door of anapartment or they would kill him. The police officers stood at the top of the stairs and to the side when Ball knocked.Defendant answered the door after several minutes, wearing boxer shorts and no shirt. When Ball asked for "Smokey,"defendant stated that "Smokey wasn't there" and shut the door. Ball testified that he had known defendant for one year butdid not see him often. Ball did not know where defendant lived and "had no idea who would come to the door." Ball alsostated that defendant had nothing in his hands when he opened the door. About 10 seconds later, the officers told Ball toknock on the door a second time. The officers kicked the door open when no one answered after 15 seconds.

Defendant testified that he lived in Maywood at the time of his arrest and that his cousin Timothy Herndon, now deceased,resided at 4531 West Jackson Boulevard. Defendant stated that he had been out with his girlfriend until 2 a.m. and took herhome. He saw Herndon with a group of men on a street corner about 3 a.m., and Herndon agreed to let defendant stay thenight at his apartment. Defendant testified that soon after he went to bed, he got up to answer a knock at the door. Heopened the door and Ball asked if Smokey was there. Defendant stated that Smokey was a friend of Herndon and that he didnot see anyone else at the door. He told Ball that Smokey was not there and closed the door. Defendant then heard apounding at the door before the door broke. The officers entered, arrested him and searched the apartment. Defendantdenied saying that he lived at the apartment or consented to a search. He also stated that he did not know that drugs werepresent.

After hearing arguments, the trial court found that Ball provided information to the police and based on the evidence deniedthe motion to quash arrest and suppress evidence, and found defendant guilty.

ANALYSIS

Defendant argues that exigent circumstances did not justify the warrantless forced entry into the apartment and that the trialcourt erred in failing to quash the arrest and suppress the evidence. The prosecution contends that probable cause wasestablished when defendant opened the door with a bag of cannabis in his hand and exigent circumstances justified thewarrantless forced entry.

Usually, the decision of a trial court on a fourth amendment motion to quash arrest and suppress evidence will not bedisturbed by a reviewing court unless that finding is determined to be clearly or manifestly erroneous. People v. Foskey, 136Ill. 2d 66, 76 (1993). In this case defendant indicated in his brief that he is not contesting the trial court's findings as to thefacts and the credibility of the witnesses, but rather challenging whether exigent circumstances justified the warrantlessentry. Where the facts and the credibility of the witnesses are undisputed, as here, the question of whether exigentcircumstances are present is a question of law, subject to consideration by this court de novo. People v. Abney, 81 Ill. 2d159, 168 (1980).

I. Standing

In considering a motion to suppress evidence based on an allegedly illegal search, the court must first determine whether thedefendant has standing to challenge the search and seizure before addressing the merits of defendant's claim. Defendantclaims that as an overnight guest he has standing to challenge the warrantless entry into the apartment. The State does notcontest the issue of standing in this case.

Standing to claim the protection of the fourth amendment (U.S. Const., amend. IV) depends upon whether the person whoclaims the protection has a legitimate expectation of privacy in the invaded place. Rakas v. Illinois, 439 U.S. 128, 143, 58 L.Ed. 2d 387, 401, 99 S. Ct. 421, 430 (1978). A subjective expectation of privacy is legitimate if it is one that society isprepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361, 19 L. Ed. 2d 576, 588, 88 S. Ct. 507, 516(1967) (Harlan, J., concurring). Illinois courts have repeatedly declined to grant standing for purposes of contesting a searchand seizure to persons who are guests or merely present in someone else's home or on another person's property which issearched. People v.. Ervin, 269 Ill. App. 3d 141, 147 (1994). Overnight guests in private homes, however, have asufficiently legitimate expectation of privacy in the premises to confer standing to challenge a search. Olson, 495 U.S. 91,109 L. Ed. 2d 85, 110 S. Ct. 1684. The overnight guest seeks shelter in another's home precisely because it provides himprivacy and a place where he and his possessions will not be disturbed. As recognized by the court in Olson "[w]e are at ourmost vulnerable when we are asleep because we cannot monitor our own safety" and "when we cannot sleep in our ownhome we seek out another private place to sleep, whether it be a hotel room, or the home of a friend." Olson, 495 U.S. at 99,109 L. Ed. 2d at 94-95, 110 S. Ct. at 1689. Thus, in this case, as an overnight guest, defendant had a legitimate expectationof privacy and therefore standing to challenge the warrantless entry into the basement apartment.

II. Exigent Circumstances

The central issue in this case is whether exigent circumstances justified the warrantless forcible entry into the basementapartment occupied by the defendant. As a preliminary matter, we note that defendant does not claim that the apartmentdoorway was an enclosed area. The witnesses testified that the doorway was in an open area, and Officer Polaski testifiedthat he saw defendant holding the packet of cannabis in the doorway of the apartment. Therefore, Officer Polaski was in aplace where he had a lawful right to be when he saw defendant holding the cannabis. The defense does not contest that thecriminal nature of what Officer Polaski observed was immediately apparent. The defense does not contest the officer'sconclusion that what he observed was cannabis. Therefore, given that the defense does not contest that the criminal natureof the packet of cannabis was in plain view of the police officers, there is no issue regarding probable cause.

Our analysis centers on whether the warrantless entry by the police into the apartment violated defendant's rights. Thedefendant argues that constitutional safeguard in section 6 of article I of the Illinois Constitution, and in the fourthamendment to the United States Constitution, prohibit police officers from making warrantless, nonexigent entries into aprivate residence to make an arrest. Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980).

The Supreme Court in Payton noted that the physical entry into the home is the chief evil against which the fourthamendment is directed and held that the fourth amendment "prohibits the police from making a warrantless andnonconsensual entry * * * in order to make a routine felony arrest." 445 U.S. at 576, 63 L. Ed. 2d at 644, 100 S. Ct. at 1374-75. The fourth amendment guarantees, "The right of the people to be secure in their persons, houses, papers, and effects,against unreasonable searches and seizures * * *." U.S. Const., amend. IV. Both the United States and Illinois Constitutionsprotect individuals against unreasonable searches and seizures. U.S. Const., amends. IV; Ill. Const. 1970, art. I,