Find Legal Information

Based on an informant's tip, the police stopped defendant, Kevin M. Kveton, outside hishome and asked to search a backpack he was carrying. Defendant allowed the search, whichdisclosed a lockbox containing cannabis. The police then entered defendant's home, searched hisbedroom, and discovered additional cannabis in a second backpack. The State charged defendantwith possessing 30 to 500 grams of cannabis with the intent to deliver (720 ILCS 550/5(d) (West2004)). Defendant, who was a high school student at the time of the arrest, moved to quash thearrest and suppress the evidence, arguing that the police unlawfully seized and searched him withouta warrant, probable cause, reasonable suspicion, or voluntary consent. The trial court denied themotion, and following a stipulated bench trial, defendant was found guilty. The trial court imposeda 60-day jail sentence and a street value fine of $4,760.

On appeal, defendant renews his argument that he was unconstitutionally seized andsearched, and he also argues that he is entitled to a $10 credit for the two days he spent in pretrialcustody. The State responds that the entire encounter was voluntary and consensual, and therefore,defendant's constitutional rights were not implicated. The State concedes that defendant is entitledto the $10 credit against his fine.

We recognize that this is a close case, but we conclude that defendant's consent to the initialencounter and ensuing search outside was an involuntary acquiescence to police authority thatviolated defendant's constitutional rights. We further conclude that, even if the first search wasconstitutional, defendant's consent to the second search in his home was involuntary because he wasunder arrest at that point.

We emphasize that the State has never raised the potentially meritorious argument that theinformant's tip justified a seizure of defendant. In the trial and appellate courts, the State wasafforded multiple opportunities to present the argument but chose not to do so. Therefore, we cansurmise only that the State has knowingly abandoned the theory that the tip justified a brief detentionfor investigation. In arguing only that defendant consented to the entire event, the State essentiallyconcedes that the police officers had no reason to believe that defendant had committed a crime atthe time of the encounter. Because the contraband discovered outside and inside defendant's homewas inadmissible, we conclude that the trial court erred in denying defendant's motion to suppressthe evidence and quash the arrest. Therefore, we reverse the judgment and the underlying orderdenying the motion, and we remand the cause for further proceedings consistent with this opinion.FACTS

At the hearing on the suppression motion, the defense introduced the testimony of defendantand Travis Rossow, his friend and classmate who was present at the time of the search. Defendanttestified that, at 4:30 p.m. on January 24, 2002, he and Rossow were walking from the front door ofdefendant's house to Rossow's car, which was facing south on the street in front of defendant's house. An unmarked police car, which was traveling northbound toward them at 35 to 40 miles per hour,crossed into the oncoming lane, and "came to a screeching halt" in front of Rossow's car. The policecar's front bumper faced the front bumper of Rossow's car. Approximately 30 seconds later, amarked squad car arrived from the other direction and parked behind Rossow's car. Defendant andRossow had not yet entered Rossow's car, but defendant believed that they could not leave in the carbecause the police cars blocked its path.

Two police officers exited the unmarked police car, and according to defendant, the officerswere in uniform. Officer Scott Klecka, "in a directive voice," told defendant to "get over here." Defendant knew Officer Klecka and had spoken to him twice before because the officer wasstationed at defendant's high school. Defendant had not experienced any "hard times" with OfficerKlecka, but the officer occasionally had raised his voice to defendant at school before the date of thearrest.

Defendant walked toward Officer Klecka as directed. The officer did not draw his handgunor handcuffs or use profanity, but he said that he knew what defendant "was up to" and asked whatthe backpack contained. Defendant responded, "I think you know what's in the bag." As defendantwas standing near the driver's-side front tire of the police car, Officer Klecka told defendant that hewas under arrest. Officer Klecka directed defendant to open the backpack, and defendant believedthat he had no choice but to comply. At one point, Officer Klecka also conducted a pat-down searchof defendant. During defendant's encounter with Officer Klecka, Rossow was conversing with thesecond officer on the other side of the unmarked police car.

Because defendant preferred not to open the backpack in view of onlookers, he asked whetherhe could open it elsewhere. Officer Klecka agreed, opened the rear door of the police car, andassisted defendant in placing the bag in the backseat. Defendant unzipped the backpack and OfficerKlecka examined the inside. Officer Klecka removed a lockbox, which had not been visible whenthe bag was closed. Officer Klecka directed defendant to unlock the box. Defendant removed a keyfrom his chain, gave it to Officer Klecka, and the officer used it to open the box, which containedcannabis.

One of the officers asked defendant, "[W]hat's in the house[?]" and defendant dropped hishead without saying anything. The officer then said "let's get going" and led defendant inside thehouse, where the three officers searched for more contraband. Defendant denied consenting to thesearch of the house. Officer Klecka handcuffed defendant and placed him in the police car.

Rossow, who also knew Officer Klecka from the school, generally corroborated defendant'stestimony. Rossow testified that Officer Klecka parked the police car at a 45-degree angle so thatit faced his car. Rossow was entering his car when Officer Klecka exited his vehicle "pretty fast"and shouted defendant's name in a "loud, demanding" tone. Rossow paused, and Officer Latronicawalked toward him and began questioning him about his identity, residence, and plans for the day. Meanwhile, Officer Klecka called defendant over to him, and defendant complied. Officer Kleckatold defendant, "you know you are under arrest, right?" Defendant looked down and did not answer. Officer Klecka then asked defendant, "[W]hat's in your backpack[?]" and directed defendant to openit. Defendant asked whether he should open the bag in the open, and the officer responded byleading him to the rear seat of the police car, where they opened it and removed the lockbox. OfficerKlecka asked defendant for the key to the lockbox, defendant produced it, and the officer opened thebox. Rossow testified that he was within five or six feet of defendant and Officer Klecka and couldobserve and overhear their conversation.

When Officer Klecka finished searching the lockbox, a second marked police car arrived andparked behind Rossow's car. Before the officers entered defendant's house, one of them toldRossow, "[y]ou are free to go." Rossow did not feel free to leave until he was told he could do so. Rossow's interaction with the police lasted 10 to 15 minutes.

Officer Klecka was the only witness to testify for the State. On January 24, 2003, OfficerKlecka arrested Vincent Manna, a student at defendant's school, for possession of cannabis. Mannatold Officer Klecka that the cannabis "wasn't his" and that he "usually buys from [defendant]." Manna also said that defendant usually kept a quarter- to one-half-pound of cannabis stored in clearplastic bags in a beige lockbox in his bedroom at home. Manna told Officer Klecka that he had mostrecently seen cannabis in defendant's bedroom four days earlier.

Based on Manna's tip, Officer Klecka and Officer Latronica drove directly to defendant'shome. Officer Klecka testified that, at the time he left the station, he decided that he would stop defendant if he was on foot but would not stop him if he was in a car. When the officers arrived,they found defendant and Rossow walking across the front yard toward Rossow's car.

Officer Klecka pulled his car to the curb so that it faced Rossow's car but still allowedRossow to pull out. The cars were positioned so that the width of the driveway plus one car lengthseparated them. Officer Klecka exited the car and, in a normal tone, told defendant, "I want to talkto you." The officer testified that defendant was free to leave and not under arrest at that time. Ifdefendant had declined to speak with the officers, they would have allowed him to leave. OfficerKlecka remained standing next to his car door, and defendant walked toward him while carrying abackpack.

Officer Klecka told defendant that he knew "what he ha[d] been doing," and defendantlowered his head and sighed deeply. Officer Klecka asked defendant "how much pot he had withhim," and defendant nodded his head and admitted that he was carrying some in the backpack. Meanwhile, Officer Latronica was speaking with Rossow near Rossow's car.

After acknowledging possession of the cannabis, defendant asked, "[C]ould we gosomewhere else so my sister doesn't see this[?]" Officer Klecka said "no." Defendant then askedwhether he could open the backpack in the police car, and Officer Klecka agreed and opened the rearcar door. Defendant opened the bag in the rear seat of the police car, removed the lockbox, retrieveda key from his key chain, and unlocked the box. The officer denied ordering defendant to open thebox. The lockbox contained a digital scale, money, and clear plastic bags that contained somethingthat appeared to be cannabis.

Officer Klecka closed the lockbox and backpack, placed them in the trunk of his car, andasked defendant how much cannabis was inside his house. Defendant responded that there was one"bong" inside but that there was no more cannabis. At that point, Rossow drove away, and OfficerMalatia arrived in a marked police car as backup. Officer Klecka believed that defendant was underarrest.

According to Officer Klecka, defendant led the three officers into the house. Defendantnever told the officers that they could not search the house. Officer Klecka followed defendant toan upstairs bedroom, where he told his sister that he had been "selling weed" and was sorry. OfficersLatronica and Malatia discovered a green leafy substance in defendant's bedroom. Officer Kleckatestified that, during the entire encounter, he did not raise his voice or "command" defendant to doanything. Defendant was calm, compliant, and nonargumentative.

On cross-examination, Officer Klecka admitted that Manna did not say whether defendantpossessed any contraband on the date of the arrest. Officer Klecka also admitted that the lockboxwas not visible until defendant opened the backpack. Officer Klecka stated that defendant was underarrest at the moment he saw the plastic bags of cannabis inside the lockbox, but he admitted thatdefendant was not admonished of his Miranda rights at that time. Nothing in the record indicatesthat defendant was ever informed of his Miranda rights.

Manna testified for the defense as a rebuttal witness. Manna stated that he was summonedto the dean's office at his school on January 24, 2003. Manna was transported to the police station,where he spoke with Officer Klecka about some cannabis that was discovered in his locker. Mannaadmitted to the officer that he had been dealing cannabis at school, and he identified defendant ashis "competition." Manna was arrested. Manna denied telling Officer Klecka that he saw drugs indefendant's home four days before the arrest. In fact, Manna testified that he truthfully told OfficerKlecka that he most recently saw defendant with cannabis three months before the date ofdefendant's arrest.

The trial court denied the motion to suppress the evidence and quash the arrest. The courtfound that Manna's tip "simply [got] the detective to the scene." The court concluded that, althoughthe evidence did not support a stop pursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S.Ct. 1868 (1968), defendant was not seized and the search was proper because the encounter wasvoluntary and consensual. The trial court made the following oral finding:

"Clearly, if [Officer Klecka] did detain [defendant], [the officer] would have needed a Terrybasis to do this and it's not here. So it has to be a voluntary encounter, casual encounter, andit's your burden, [defense counsel]. I hold that you did not meet it. I'll deny your motion."

Defendant waived his right to a jury, and the parties stipulated that certain evidence wouldbe presented at trial. In considering a ruling on a motion to suppress, a reviewing court may considerevidence presented at trial as well as the evidence that was presented at the suppression hearing. People v. Serio, 357 Ill. App. 3d 806, 814 (2005). Thus, we briefly summarize the stipulatedevidence because it is relevant to our review of the suppression motion.

Officer Klecka would supplement his testimony from the suppression hearing with testimonythat defendant consented to the search of his bedroom after disclosing the cannabis in the lockboxoutside. On defendant's bedroom floor, Officers Klecka, Latronica, and Malatia discovered a secondbackpack, which contained two additional plastic "baggies" of cannabis and a coffee grinder. Defendant initially denied ownership of the cannabis in the second backpack, but he "basicallyadmitted that [it] was in fact his cannabis and he had forgotten it was in the bedroom."

Defendant was transported to the Lombard police department, where he gave oral and writtenstatements admitting that he sold cannabis primarily to his friends to help them "stay away" fromharder drugs like cocaine. Defendant had one or two sources from whom he purchased a quarter-to one-half-pound of cannabis at a time.

Jean Kinnane, a forensic scientist with the Du Page County Crime Lab, would testify that thecontents of the plastic baggies from the two backpacks tested positive for cannabis. The total weightof the cannabis was 460 grams. Kinnane did not specify the separate weights of cannabis discoveredin the two searches. Based on the stipulation, the trial court found defendant guilty and imposed thesentence. This timely appeal followed.

ANALYSIS

On appeal, defendant argues that the cannabis was inadmissible as the fruit of his involuntaryacquiescence to a showing of police authority. Defendant further argues that the informant's tip gavethe arresting officer neither probable cause to arrest nor reasonable and articulable suspicion to stopdefendant. The State's sole argument on appeal is that defendant voluntarily consented to the initialstop and the two searches, which yielded contraband outside and inside the home. As a final matter,defendant argues, and the State agrees, that defendant is entitled to a $10 credit toward his fine forthe two days he spent in pretrial custody.

A. Standard of Review

In reviewing a circuit court's ruling on a motion to suppress evidence, mixed questions of lawand fact are presented. A reviewing court will uphold findings of historical fact made by the circuitcourt unless such findings are against the manifest weight of the evidence. This deferential standardof review is grounded in the reality that the circuit court is in a superior position to determine andweigh the credibility of the witnesses, observe the witnesses' demeanor, and resolve conflicts in theirtestimony. However, a reviewing court remains free to undertake its own assessment of the facts inrelation to the issues presented and may draw its own conclusions when deciding what relief shouldbe granted. Accordingly, we review de novo the ultimate question of whether the evidence shouldbe suppressed. People v. Jones, 215 Ill. 2d 261, 268 (2005).

In this case, the trial court did not expressly assess the credibility of the witnesses at thehearing on the suppression motion. For instance, Manna and Officer Klecka offered conflictingtestimony as to the substance of Manna's tip: Manna testified that he had last seen defendant withcannabis more than three months before the arrest, while Officer Klecka testified that Manna toldhim that defendant had cannabis in his bedroom as recently as four days before the arrest. The trialcourt disregarded the inconsistency, finding that Manna's tip "simply got the detective to the scene"to facilitate a consensual encounter. Also, the court did not expressly determine whether OfficerKlecka blocked Rossow's car, but the court stated that Officer Klecka "push[ed] the limit of whatis a defense versus a voluntary encounter on the street." The court's ultimate ruling supports theinference that Officer Klecka was found to be more credible than defendant and Rossow.

Defendant concedes that the trial court was not manifestly erroneous in crediting OfficerKlecka. For purposes of this appeal, defendant cites the officer's version of the events whiledisputing the ultimate issue of whether he voluntarily consented to any part of the encounter. In lightof defendant's concession in this case, we construe the evidence in favor of the State. However, wereview the trial court's ultimate determinations de novo.

B. Burden of Proof Both the fourth amendment to the United States Constitution (U.S. Const., amend. IV) andarticle I, section 6, of the Illinois Constitution (Ill. Const. 1970, art. I,