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No. 2--03--0795

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Following a stipulated bench trial, the defendant, Brenda Kratovil, was found guilty ofunlawful possession of Cannabis sativa plants (720 ILCS 550/8(c) (West 2002)), a Class 3 felony,and sentenced to 12 months' conditional discharge and 30 hours of community service. Onappeal, the defendant argues that (1) the trial court erred in denying her pretrial motion tosuppress evidence and quash arrest; (2) the trial court erred in denying a jury instruction regardingthe defense of necessity as codified in section 7--13 of the Criminal Code of 1961 (the CriminalCode) (720 ILCS 5/7--13 (West 2002)); and (3) she is entitled to a defense of medical necessity. We affirm.

I. BACKGROUND

On November 28, 2001, the defendant was charged by indictment with a Class 3 felony ofunlawful possession of Cannabis sativa plants (720 ILCS 550/8(c) (West 2002)), in connectionwith an incident in which she was found in possession of 31 marijuana or cannabis plants and drugparaphernalia. The indictment alleged that the defendant knowingly and unlawfully possessedmore than 20 but less than 50 Cannabis sativa plants.

On January 17, 2002, the defendant filed a motion to suppress the evidence and quash thearrest that resulted from a search by the police of the defendant's home. On March 8, 2002, thetrial court conducted a hearing on the motion to suppress. The defendant, whose vision isimpaired, testified that on the afternoon of September 4, 2000, she heard a knock at her frontdoor. She walked to the front door and opened the screen door. Officer John Willer of the LakeCounty sheriff's police identified himself and stepped inside. The defendant testified that she didnot give Officer Willer verbal permission to enter her residence. However, on cross-examination,she admitted that she had voluntarily opened the front screen door and walked backwards awayfrom the door. Once inside, Officer Willer informed the defendant about the marijuana that heobserved growing in her back yard.

The defendant testified that at this point, she presented her National Organization for theReform of Marijuana Laws (NORML) card to Officer Willer. The NORML card informscardholders of their constitutional rights. Specifically, the card states:

"The U.S. Constitution prohibits the government from interfering with your right toremain silent, to consult with an attorney, and to be free from unreasonable searches andseizures by law enforcement. However, it is up to you to assert these rights. ThisNORML Foundation Freedom Card will help you do so effectively."

The NORML card also instructs the cardholder to refuse to consent to any searches and topresent the card to any law enforcement officers as a statement of the constitutional rights thecardholder wishes to invoke. The defendant knew about the content of the card. She testifiedthat when she gave the card to Officer Willer, he dismissed it.

The defendant testified that once inside, Officer Willer asked her for consent to search herresidence. Officer Willer told her that if she did not consent to a search, he would leave twoofficers in her residence while he obtained a warrant. After obtaining a warrant, he would comeback to her residence with a drug dog and "tear the house apart." The defendant then consentedto a search. Upon completing the search of the defendant's residence, Officer Willer presented thedefendant with a consent form and asked her to sign the form. The defendant testified thatOfficer Willer physically assisted her in locating the areas to sign. After she signed the form, thepolice left the defendant's residence without arresting her.

Officer John Willer testified that he was a deputy with the Lake County sheriff'sdepartment and was currently assigned to the Metropolitan Enforcement Group (MEG). TheMEG is a joint task force for gangs and narcotics. On the morning of September 4, 2000, theLake County sheriff's department received an anonymous phone call that someone was growingcannabis in the backyard of the defendant's residence at 9905 Oak Forest in Beach Park. Inresponse to the anonymous tip, at around 5:30 p.m. that day, Officer Willer and two other officersof the MEG, Officer Swanson and Officer Peters, drove to the area of the residence.

The officers approached the defendant's neighbor, Scott Loesch, and requested permissionto enter his residence, which Loesch granted. Officer Willer went into Loesch's backyard, whichbordered the back of the defendant's residence. He looked over a wooden fence into thedefendant's backyard and saw what he believed to be several Cannabis sativa plants growingthroughout the defendant's backyard. Officer Willer explained that the MEG has provided himwith experience and training on identifying Cannabis sativa plants.

Officer Willer then went to the defendant's residence and knocked on the front screendoor, which was closed. The inner door of the residence was already open when he knocked. The defendant approached the front door, and Officer Willer identified himself as a member of theMEG. Officer Willer informed the defendant about what he had observed from Loesch's backyardand asked if he could enter her residence to discuss the situation.

The defendant gave Officer Willer permission to enter her house. He and the two otherofficers entered the defendant's residence. Once inside the defendant's residence, Officer Willeragain told the defendant what he had observed. The defendant informed Officer Willer that shesuffered from severe glaucoma and that cannabis helped to relieve the pain in her eyes. OfficerWiller asked the defendant for her consent to search the residence for any other cannabis plants. The defendant initially hesitated and did not consent to the search of her residence. She askedOfficer Willer what would happen if she did not consent. Officer Willer informed the defendantthat he would leave an officer at the residence while he went to a judge who would possibly granta search warrant for the residence. The defendant then consented to a search of the residence.

Officer Willer and the defendant then went into the kitchen of the defendant's residence. There, Officer Willer presented the defendant with a consent form for her to sign to acknowledgethat she had given the police her consent to search her residence. The consent form wasboilerplate, so Officer Willer added an addendum to cover the shed in the defendant's backyard. He asked her to confirm the handwritten addendum and she initialed the added portion. Thedefendant placed the form close to her eyes but she initialed and signed the form without OfficerWiller's assistance. After obtaining her signature, the officers proceeded to search her residencefor additional Cannabis sativa plants.

While Officers Swanson and Peters were searching the defendant's residence, OfficerWiller and the defendant were in the kitchen. Officer Willer testified that he asked the defendantfor identification so that he could fill out some paperwork. The defendant then handed OfficerWiller her state identification card along with her NORML card. The defendant did not sayanything with regard to the NORML card when she handed it to him. The defendant did not, atany time, verbally assert any of her rights that were written on the NORML card. Officer Willerbelieved that the NORML card was merely something that had inadvertently become stuck to thedefendant's identification card while in her purse and that she had accidentally handed it to him. Because he was focused on the paperwork, Officer Willer did not read the NORML card untilafter the police had completed the search.

A complete search of the defendant's residence revealed several Cannabis sativa plants onthe second floor of the defendant's residence, in addition to the plants in her backyard. Theofficers also found drug paraphernalia in the defendant's residence. The officers seized theCannabis sativa plants and the drug paraphernalia. Officer Willer informed the defendant that shewould not be arrested at this time. The officers then left the defendant's home.

Following the hearing, the trial court denied the defendant's motion to suppress evidencefrom the search and to quash her arrest. Specifically, the trial court found:"Ms. Kratovil voluntarily consented to the search of her residence. And the testimonyfrom everyone is that the officer goes to the defendant's home and knocks on the screendoor. The inside door is already open. The officer and Ms. Kratovil both say that theofficer identified himself as a--as Deputy Willer and that he was with the MetropolitanEnforcement Group, and explained why he was there and what he saw. The deputy saidthat he asked if he could come in, and that the defendant said 'yes'; and she stepped back,and he came in.

He again testified that he explained what he saw and asked if he could have a lookaround. That is, asked if he could search. Ms. Kratovil indicated that she was not sure,and at this point they took a couple of minutes. During this time frame she asked, 'Whatwould happen if I don't consent?' And in response to her question the deputy explainedthat he would leave. He would leave someone there. Then he would go back and attemptto get a search warrant, and then come back. I don't find that coercive, but a response toa question asked by the defendant. There was no other conversation. Again, he indicatedthat there was silence, and then Ms. Kratovil indicated that they could search.

Now, there is a question over this consent to search form. *** And the deputyindicated they walked into the kitchen, as well as Ms. Kratovil said they walked into thekitchen. *** They went into the kitchen and at that time he pulls out a consent to searchform and explains to her what this is. And he says yes, he noticed that there wassomething unusual about Ms. Kratovil, that something was wrong with her eye. And, infact, when she looked at the consent to search form she held it up very close to her face. She asked 'Where do I sign?' And the officer said, 'By the x.' *** At this time then thesearch is done both inside and outside the home.

The deputy then talks about getting her identification card, and that--along withthat is some other card that he did not look at until after. And I find it hard to believe thatafter Ms. Kratovil testified that having this card, knowing what was on the card, andknowing now what was going on inside her home that she would not have said to theofficer, 'I know my rights. I know you don't have to be here. I know you don't have tosearch.' Nothing is said when this card is even taken out. And, so, in looking at all of thefacts as presented by all of the witnesses, your motion is denied."On October 9, 2002, the defendant filed a motion in limine to present an affirmative defense ofnecessity as codified in section 7--13 of the Criminal Code (720 ILCS 5/7--13 (West 2002)). Themotion also requested that she be allowed to assert an affirmative defense of medical necessity. On December 4, 2002, the trial court denied the defendant's motion. On January 16, 2003, thedefense filed a motion to reconsider. The trial court thereafter agreed to hear an offer of proof.

On June 4, 2003, the trial court heard the testimony of Dr. Michael Savitt, a glaucomaspecialist and the defendant's treating doctor. At the time of the hearing, Dr. Savitt had been thedefendant's doctor for approximately six months. Dr. Savitt testified to the severity of thedefendant's ocular disease and to her treatment history. He testified to the treatment options thatwere available to the defendant, such as topical eyedrops, oral medication, and surgery. Specifically, Dr. Savitt testified that he believed that laser surgery would be the best option for thedefendant. Laser surgery would likely alleviate the defendant's pain over a prolonged period byreducing intraocular pressure and slowing the degenerative effect of the defendant's glaucoma.

Dr. Savitt also testified to the effect of marijuana on a patient suffering from glaucoma. According to Dr. Savitt, the current medical knowledge of the effect of marijuana use onglaucoma patients is scarce. Some medical studies conducted in the 1970s and 1980s indicatedthat the use of marijuana could relieve pain by marginally reducing intraocular pressure. Dr.Savitt testified that the pain-relieving effect of marijuana is only temporary. Dr. Savitt opined thatmedicated eyedrops, such as the type the defendant was using, decreased intraocular pressure at ahigher rate than the use of cannabis. On cross-examination, Dr. Savitt acknowledged that therewas no scientific basis to confirm that marijuana use reduced the defendant's intraocular pressure.

The defendant testified about the medical treatments she had received to treat herglaucoma. Throughout her life, the defendant had undergone approximately 40 surgeries on herleft eye. At the time of her arrest, the defendant was using three different types of topicalmedication to alleviate the pain associated with her glaucoma. Following the hearing, the trialcourt denied the motion to reconsider.

On June 23, 2003, the defendant signed a waiver of jury trial, and the trial courtconducted a stipulated bench trial. Following the trial, the trial court found the defendant guiltyof unlawful possession of Cannabis sativa plants. The trial court sentenced the defendant to 12months' conditional discharge and 30 hours of community service. The defendant filed a timelyappeal.
 

II. DISCUSSION

A. Motion to Suppress

We first turn to the defendant's argument that the trial court erred in denying her motionto suppress the evidence from the search and to quash her arrest. The defendant argues that thesearch of her residence was unlawful because the police did not have a search warrant and did nothave valid consent to search. She argues that the police obtained her consent through coercion,and therefore, any fruit of the search must be suppressed.

Before addressing the merits of the defendant's argument, we must first establish theproper standard of review on a ruling on a motion to suppress. A circuit court's ruling on amotion to suppress presents mixed questions of both law and fact. People v. Pitman, No. 95783,slip op. at 7 (June 17, 2004). Thus, our standard of review is twofold. First, we will uphold thetrial court's findings of historical fact, unless such findings are against the manifest weight of theevidence. Pitman, slip op. at 7. The trial court is in a superior position to determine and weighthe credibility of the witnesses, observe the witnesses' demeanor, and resolve conflicts in theirtestimony. Pitman, slip op. at 7. However, a reviewing court remains free to undertake its ownassessment of the facts in relation to the issues presented and may draw its own conclusions whendeciding what relief should be granted. Pitman, slip op. at 7. Accordingly, we review de novothe ultimate question of whether the evidence should be suppressed. Pitman, slip op. at 7.

Both the United States and Illinois Constitutions protect individuals from unreasonablesearches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I,