SECOND DIVISION
October 9, 2007
No. 1-06-1637
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 06 CR 7603
)
JAMES PARKER, ) The Honorable
) John J. Fleming,
Defendant-Appellee. ) Judge Presiding.
JUSTICE KARNEZIS delivered the opinion of the court:
The State appeals pursuant to Supreme Court Rule 604(a)(1) (210 Ill. 2d R.
604(a)(1)) from a circuit court order granting defendant James Parker's motion to
suppress physical evidence obtained when police entered and searched his house
without a warrant, but with the consent of his live-in girlfriend, Diana Grisham. On
appeal, the State contends that police had valid consent to search the premises
because Grisham signed a consent-to-search form, defendant was not physically
present when she gave that consent, and he did not expressly object to the search.
For the reasons stated below, we reverse the trial court's ruling on defendant's motion
and remand this case for further proceedings.
Defendant was charged with possession of a controlled substance and
possession of a controlled substance with intent to deliver. He subsequently filed a
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motion to quash his arrest and suppress evidence in which he claimed that he was a
passenger in a vehicle that was stopped by police for the sole purpose of conducting a
narcotics investigation. Defendant argued that the officers did not have a valid reason
to stop the vehicle, and that the search and seizure were unlawful because police
lacked a search or arrest warrant, no exigent circumstances existed, the search was
not incident to or contemporaneous with a valid arrest, and consent was given as a
submission to a show of authority. Defendant further argued that because the search
and seizure were illegal, the alleged illegal substance recovered from his person and
any statements he made to police should be excluded from evidence.
At a hearing on his motion, defendant testified, contrary to the facts in his
motion, that about 12:10 a.m. on February 26, 2006, he was sleeping in his bed with his
11-month-old daughter when he awoke and saw three or four police officers in his
bedroom pointing their guns at him and his baby. One of the officers held a piece of
paper in front of his face and explained to him that it was a consent form that Grisham
had signed giving them permission to search the house. Defendant denied that he
consented to the search and said that the police did not show him a search or arrest
warrant. Defendant testified that police brought him to his front room, then searched
his house and found crack cocaine.
Defendant further testified that he and Grisham had lived together in the house
for two years, and that they shared the bedroom and dresser drawer from which police
recovered drugs and money. Defendant acknowledged that while he was sleeping in
the bedroom, he was only a few feet away from the dresser.
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After the defense rested, the State announced that it was going to call Chicago
police officer Smith to testify, at which time the trial court intervened stating "[m]aybe I
can cut this short." Pursuant to the court's questioning, the State acknowledged that
the officer would testify that defendant was sleeping and that only Grisham consented,
but asserted that the testimony would also show that defendant never objected to the
search, and that Supreme Court case law supported the State's argument. The trial
court ruled that it was granting defendant's motion based on Supreme Court case law
holding that one person cannot consent for another. The court found that to require
someone who is sleeping to object to another's consent goes against the spirit of the
Supreme Court's ruling. It further stated that one person cannot consent to a search of
a home when another person is inside, and found that where defendant was sleeping,
he did not have an opportunity to consent or object to the search.
The State argued that defendant had an opportunity to object when the officers
woke him, to which the court replied that its ruling could be appealed and suggested
that it might "get some direction from the Appellate Court." The court further found that
defendant did not have to assert an objection, that his consent had to be shown, and
that the United States Supreme Court had held that one person cannot consent over
another's objection. The trial court stated that the "stipulated facts" in this case were
that defendant's live-in girlfriend signed a consent form, that defendant was sleeping
when she gave her consent, that he did not consent to the search, and that he did not
object to the search because he was sleeping. The court then ruled that the police
could not rely on Grisham's consent to search a room where defendant was located
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without his permission.
The State asked if defense counsel would stipulate to the police officer's
testimony, including that defendant was found asleep, he was woken and taken to the
living room, and at no time did he object or say that he was not consenting to the
search of the shared bedroom. The court responded that it had already stated the
findings of fact and that there was a stipulation, to which defense counsel replied
"[t]hat's correct." The State clarified that the stipulation included that defendant had
never objected after being woken, and counsel replied "[r]ight. They were already in
the house when he was woken up." The trial court again stated that defendant could
not object because the officers were already inside the house conducting the search,
and granted defendant's motion to quash his arrest and suppress the evidence.
On appeal, the State contends that the trial court erred when it granted
defendant's motion because the police had secured a valid consent to search the
premises when Grisham, who lived in the home with defendant, voluntarily signed a
consent-to-search form. The State asserts that the trial court misinterpreted the United
States Supreme Court's holding in Georgia v. Randolph, 547 U.S. 103, 164 L. Ed. 2d
208, 126 S. Ct. 1515 (2006), and that the instant case is factually distinct from
Randolph because here, defendant was not physically present when Grisham gave her
consent to search, and defendant never voiced an objection to the search. The State
requests this court to reverse the trial court's ruling on defendant's motion and to
remand the case for trial.
Defendant contends that the search was unreasonable because he was awoken
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and seized at gunpoint by police, informed that they had consent to search, then
removed from the room, depriving him of an opportunity to object to the search. The
State replies that it is uncontested that Grisham gave police a valid consent to search
the house, and that defendant's argument is against Supreme Court precedent set by
Illinois v. Rodriguez, 497 U.S. 177, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990), and
United States v. Matlock, 415 U.S. 164, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974).
Our review of the trial court's ruling on defendant's motion to quash and
suppress presents questions of both fact and law. People v. McCarty, 223 Ill. 2d 109,
148 (2006). The court's factual findings will not be disturbed unless they are against
the manifest weight of the evidence, while the court's ruling on the motion is a question
of law which we review de novo. McCarty, 223 Ill. 2d at 148.
The fourth amendment of the United States Constitution, which applies to the
states through the fourteenth amendment, protects all citizens from unreasonable
searches and seizures in their homes. U.S. Const., amend. IV. Generally, police must
obtain a search warrant supported by probable cause before they can search a
person's home (People v. Lampitok, 207 Ill. 2d 231, 243 (2003)), and searches
conducted without such a warrant are presumptively unreasonable (Randolph, 547 U.S.
at 109, 164 L. Ed. 2d at 218, 126 S. Ct. at 1520). An exception to this rule exists where
police obtain voluntary consent to search the home from either the defendant, or from a
third party who possesses common authority over the premises. Matlock, 415 U.S. at
171, 39 L. Ed. 2d at 249-50, 94 S. Ct. at 993.
The Supreme Court has held that when one person who has common authority
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over the premises consents to a search, his consent is valid against an absent,
nonconsenting person who shares that authority. Matlock, 415 U.S. at 170, 39 L. Ed.
2d at 249, 94 S. Ct. at 993. However, although a co-tenant gives his consent, a search
will be found unreasonable as to a defendant who was physically present at the scene
and expressly stated his refusal to allow police to enter and search the premises.
Randolph, 547 U.S. at 106, 164 L. Ed. 2d at 217, 126 S. Ct. at 1518-19.
In Matlock, the defendant was arrested in his front yard and placed in a police
car, after which his live-in girlfriend gave police her consent to search the bedroom they
shared, in which evidence was recovered. Matlock, 415 U.S. at 166, 39 L. Ed. 2d at
247, 94 S. Ct. at 991. The Supreme Court found that the co-tenant's voluntary consent
to the search made it reasonable as to the defendant, who was not present to object to
the search, although he was in a nearby squad car. Matlock, 415 U.S. at 177, 39 L. Ed.
2d at 253, 94 S. Ct. at 996.
In Rodriguez, the defendant was asleep in the bedroom when his apparent live-
in girlfriend gave police her consent to enter the apartment to arrest him for assaulting
her, at which time police recovered drugs and related paraphernalia that was in plain
view. Rodriguez, 497 U.S. at 179-80, 111 L. Ed. 2d at 155-56, 110 S. Ct. at 2796-97.
The Court found that if the police reasonably believed that the woman had the authority
to consent, then their entry into the apartment was reasonable. Rodriguez, 497 U.S. at
189, 111 L. Ed. 2d at 161, 110 S. Ct. at 2801.
Reflecting on its prior decisions in Matlock and Rodriguez, the Randolph court
acknowledged:
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"we are drawing a fine line; if a potential defendant with self-
interest in objecting is in fact at the door and objects, the co-tenant's
permission does not suffice for a reasonable search, whereas the
potential objector, nearby but not invited to take part in the threshold
colloquy, loses out." (Emphasis added.) Randolph, 547 U.S. at 121, 164
L. Ed. 2d at 226, 126 S. Ct. at 1527.
Here, we find that the warrantless search of defendant's home was reasonable
and did not violate his fourth amendment rights where police had secured a voluntary
consent to search the premises from the co-tenant in defendant's absence. Similar to
the defendant in Rodriguez, defendant in this case was sleeping in the bedroom when
Grisham, his live-in girlfriend, gave police her consent to enter and search the home
that they shared. Although defendant was present nearby, he was not present at the
threshold colloquy where Grisham gave her voluntary consent. Due to his absence at
that point, defendant could not object when police entered his home and began their
search. Following the reasoning of the Randolph court, defendant "lost out" on his
opportunity to do so. We further note that the record contains no evidence that
defendant ever expressly voiced an objection to the search, even after being
confronted by police in the bedroom.
In addition, we reject defendant's argument that the search was unreasonable
because he was deprived of his opportunity to object. In order for defendant to
override Grisham's consent, it was necessary for him to be present "at the door" and
expressly object to the search when police entered his home. There is no evidence in
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the record that the police removed him from the "entrance" to avoid his possible
objection. Randolph, 547 U.S. at 121, 164 L. Ed. 2d at 227, 126 S. Ct. at 1527.
Moreover, the Supreme Court explicitly rejected the notion that the police should be
required "to find a potentially objecting co-tenant before acting on the permission they
ha[ve] already received," as doing so would turn every co-tenant consent case into an
examination of the adequacy of the efforts of police to consult with a potential objector.
Randolph, 547 U.S. at 122, 164 L. Ed. 2d at 227, 126 S. Ct. at 1527-28. Accordingly,
we find that defendant's motion to quash his arrest and suppress the evidence should
have been denied.
For these reasons, we reverse the ruling of the circuit court of Cook County and
remand this case for further proceedings.
Reversed and remanded.
THEIS and CUNNINGHAM, J.J., concur.
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