Latest on Search and Seizure

The trial court erroneously denied the defendant’s motion to suppress because a sheriff’s deputy didn’t have a warrant or consent to enter an apartment where the defendant was found and there were no exigent circumstances that would justify the deputy’s entry and search of the apartment.
The Illinois Appellate Court, 2nd District, has reversed defendant Dejuan Davis’s convictions for unlawful possession of a controlled substance with intent to deliver and unlawful possession of cannabis with intent to deliver. Lake County Circuit Judge Victoria A. Rossetti presided in the trial court.

After the defendant was charged in October 2007, he filed a motion to suppress all evidence and statements obtained as a result of the allegedly illegal entry into and search of his apartment.

At a hearing on the motion, John Willer, a Lake County sheriff’s deputy, testified that on Sept. 16, 2007, he responded to a call to assist another deputy in connection with a traffic altercation in Lake Villa. The defendant, his girlfriend and another man were accused of attacking Stephanie Harrison, who allegedly owed money to the defendant and his girlfriend for drugs.

Harrison told the deputy he knew the location of the girlfriend’s apartment in Antioch and that illegal drugs could be purchased at the apartment at any time. The deputy and several other officers went to the apartment and when they arrived, they heard several voices. Willer said he tried to open a door to the apartment but that it was locked.

When the defendant’s girlfriend came out of the apartment, she told the officers that the defendant was still in the apartment. Willer then entered the apartment although the defendant’s girlfriend never told him that he had permission to enter. When the defendant came out, he was arrested and Willer entered the apartment although he didn’t have permission to do so.

During a search of the apartment, Willer found a loaded handgun, a digital scale, a substance that was determined to be cocaine and cannabis.

The trial court denied the defendant’s motion to suppress, finding that neither the defendant nor his girlfriend told Willer he couldn’t enter the apartment and that once the defendant and his girlfriend were arrested, it was necessary for the officers to enter the apartment because there were young children in the apartment who couldn’t be left alone. The court also noted that Willer had information that drugs were being sold from the apartment.

After a jury trial, the defendant was found guilty of the drug charges and was sentenced to concurrent 11-year and five-year prison terms. On appeal, the defendant argued that the trial court erroneously denied his motion to suppress because the deputy’s entry into the apartment was warrantless, non-consensual and not justified by exigent circumstances.

The appeals court agreed and reversed. The court said that absent exigent circumstances, police may not enter a private residence to make a warrantless search or arrest. In this case, the appeals court said that Willer had neither a warrant nor consent to enter the apartment and that the entry and search were not supported by exigent circumstances.

“The evidence … does not support a finding of exigent circumstances because it does not suggest an immediacy or real threat of current danger or likelihood of flight,” the appeals court said. “Nor do the circumstances of this case indicate that the delay involved in obtaining an arrest warrant for defendant would have impeded the investigation or the apprehension of defendant.”

In addition, the appeals court said the police had no reason to believe that the defendant was armed or otherwise posed a threat to the police or others and there was no evidence that the police suspected the defendant of being armed. There also was no evidence that the defendant was likely to flee unless he was swiftly apprehended and so the doctrine of “hot pursuit” wasn’t applicable to the defendant.

“In sum, we conclude that Willer’s entry into defendant’s apartment and his discovery of the scale and white powder … were unlawful,” the court said. “Without the illegally seized evidence, the state could not prevail at trial because defendant’s convictions rested solely upon the illegally seized evidence and his statements that he owned the illegally seized evidence.”

People v. Dejuan Davis, No. 2-08-0168. Presiding Justice Kathryn E. Zenoff wrote the court’s opinion with Justices John J. Bowman and Ann B. Jorgensen concurring. Released Feb. 24, 2010.

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