dissenting.
I respectfully dissent. I agree, as indeed do the parties, with the basic facts espoused in the majority opinion. I do not, however, agree with the conclusions the majority draws from those facts, nor with the conclusions of the trial court. I begin by making a distinction of law the majority fails to make: the eight-factor exigent circumstances test used by the majority to justify the trial court’s ruling was intended by the Illinois Supreme Court to apply to situations where the crime for which the warrantless arrest was made was not committed in the presence of the arresting officers and where time had passed between the commission of the crime and the arrest. Indeed, every case the majority cites in support of the eight-factor test involved such a situation. People v. Williams, 161 Ill. 2d 1, 15-17, 28, 641 N.E.2d 296, 301-02, 306 (1994) (the offense was not committed in the presence of the police, and the defendant was arrested 27 hours later); People v. Foskey, 136 Ill. 2d 66, 72-73, 554 N.E.2d 192, 196 (1990) (the offenses were not committed in the presence of the police, and the defendant was arrested approximately one month after the offenses began); People v. White, 117 Ill. 2d 194, 202, 206, 512 N.E.2d 677, 678, 680 (1987) (the offense was not committed in the presence of the police, and the defendant was arrested 11 days later); People v. Yates, 98 Ill. 2d 502, 511-12, 456 N.E.2d 1369, 1374 (1983) (the offense was not committed in the presence of the police, and the defendant was arrested four days later); People v. Abney, 81 Ill. 2d 159, 162, 407 N.E.2d 543, 544 (1980) (the offense was not committed in the presence of the police, and the attempt to arrest the defendant was made at the defendant’s home, not the location of the offense, one and a half hours later).
The Illinois Supreme Court has devised a different exigent circumstances test for situations where the crime was committed in the presence of the arresting officer and the arrest immediately followed. In People v. Eichelberger, 91 Ill. 2d 359, 369, 438 N.E.2d 140, 144 (1982), the Illinois Supreme Court held that a police officer may arrest a person without a warrant when the officer has reasonable grounds to believe that the person the officer seeks to arrest is committing or has committed a felony in the presence of the officer. The court added, “An offense is committed in an officer’s presence when knowledge of the commission of an offense is acquired through any of his senses.” Eichelberger, 91 Ill. 2d at 369, 438 N.E.2d at 144. The court went on to hold that where the offense was committed in the presence of an officer, that officer could enter the premises where the offense occurred without a warrant for the purpose of making a warrantless arrest. Eichelberger, 91 Ill. 2d at 369, 438 N.E.2d at 145. The premises in question was a hotel room rented by the defendant. Eichelberger, 91 Ill. 2d at 369, 438 N.E.2d at 145. The Illinois Supreme Court specifically found that the commission of a felony in the presence of a police officer was in and of itself an exigent circumstance and that no additional exigent circumstances were required, stating, “The fact that the officers reasonably believed that a felony was being committed in their presence demanded prompt police action and constituted an exigent circumstance which justified the warrantless entry into the hotel room and the arrest.” Eichelberger, 91 Ill. 2d at 369, 438 N.E.2d at 145. I note that subsequent to its publication, Eichelberger has never been overruled or even criticized by the Illinois Supreme Court. I note as well that although in Eichelberger the entry into the rented room in question was not forced, the Eichelberger court did not restrict its holding to situations where there has been no forced entry. Eichelberger, 91 Ill. 2d at 370, 438 N.E.2d at 145. Because in the case at bar the police had a reasonable belief that a felony was being committed in their presence, the exigent circumstances test of Eichelberger, rather than the eight-factor test relied upon by the majority, should be applied to this case. When that is done, it is clear that the arrest of the Gotts was proper.
When Deputy Washburn lawfully approached the Gotts’ cabin at the request of Mr. Ramsey, Deputy Washburn discovered a burned blister pack and noticed an unusual chemical odor. As the majority notes, the trial court specifically found that Deputy Washburn had been authorized to make each of these discoveries. On the basis of Deputy Washburn’s prior experience with illegal methamphetamine labs, he grew suspicious and Mr. Ramsey’s search of the cabin followed. Surveillance of the cabin was instituted, and sometime after 8 p.m. officers observed Clyde Gott exit the cabin and pour a clear liquid onto the ground. According to the sworn testimony of four police officers — two of whom witnessed the pouring and two of whom arrived moments later — the strong smell of ether immediately permeated the surrounding area. The defendants contend that there are legitimate uses for ether, and indeed there are, but common sense should inform this court that people using ether for legitimate purposes generally use it in aerosol form and certainly do not, as a general rule, go outside on cold winter nights to pom: containers of liquid that reek of ether onto the ground. The defendant, the trial court, and the majority have not posited a legitimate use of ether that would have led to such a remarkable sequence of events. To the contrary, any police officer at all familiar with the manufacture of methamphetamine could and almost certainly would, when Clyde Gott’s actions are coupled with Deputy Washburn’s earlier lawful discoveries, entertain a reasonable belief that the manufacture of methamphetamine, a felony, was occurring within the cabin. The constitution does not require police officers to abandon experience and common sense.
Accordingly, as soon as the officers recognized the odor of ether emanating from the area where Clyde Gott dumped the clear liquid, they had the right under Eichelberger to make a warrantless arrest of the occupants of the cabin. By the time all four officers had confirmed the presence of the odor, however, Clyde Gott had returned to the inside of the cabin. Under Eichelberger, to effect their lawful warrant-less arrest the officers had the right to enter the cabin as well. Because the officers had been advised that both a hunting knife and a handgun might be present in the 10-foot by 10-foot cabin — and recall that the trial court correctly found that the officers had the right to treat the “apparent” firearm as an actual deadly weapon until such item was conclusively found to be otherwise — the officers proceeded with caution, forcing their way into the cabin only when their attempts to peacefully engage the Gotts were ignored. I believe that under Eichelberger, the officers were within their rights to enter the cabin in the manner in which they did. Accordingly, the arrest of the Gotts was proper. Because it was obtained pursuant to this lawful arrest, the consent obtained from the Gotts, minutes after they were arrested, to search the cabin was proper as well. Under these circumstances, I believe that the evidence obtained from that legal, consensual search was not tainted, regardless of whether evidence obtained as the result of Mr. Ramsey’s earlier, improper search of the cabin would have been tainted. This is particularly so when one considers the fact that Susan Gott had made two trips to town since the first search had been conducted, a fact that renders suspect the proposition that evidence seized in the second search was necessarily identical or even remotely similar to that which would have been seized as the result of the first search.
Likewise, although it may be argued that absent the evidence found in the first search, the police would not have ordered the surveillance of the cabin — and that, of course, without surveillance the officers never would have seen Clyde Gott disperse the clear liquid that reeked of ether — I do not believe that is necessarily true. Rather, I believe that even if Mr. Ramsey had reported that he had found nothing suspicious in his search of the cabin, Deputy Washburn, on the basis of the burned blister pack and the unusual chemical odor, would have been justified in setting up surveillance and on the basis of his previous experience with illegal meth labs in all likelihood would have done so. Accordingly, the surveillance itself was not a poisonous product of Mr. Ramsey’s search of the cabin; rather, it was the result of Deputy Washburn’s earlier, completely lawful discovery of a burned blister pack and an unusual chemical odor. Thus, even if one discards Mr. Ramsey’s search and the fruits thereof entirely, the officers were still justified in conducting the surveillance of the cabin and in making the arrests they made.
For the foregoing reasons, I would reverse the decision of the trial court suppressing the evidence and would remand the cause for the Gotts to stand trial for the crimes they are alleged to have committed. Unless and until the Illinois Supreme Court determines that Eichelberger is no longer good law, I believe we are required to follow it. Because the majority chooses to do otherwise, I respectfully dissent.