People v. Aaron

May 11, 1998
No. 2--96-0864

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

THE PEOPLE OF STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 94--CF--1890
)
VERA AARON, ) Honorable
) Philip L. DiMarzio,
Defendant-Appellant. ) Judge, Presiding.


JUSTICE RATHJE delivered the opinion of the court:

The defendant, Vera Aaron, was charged by indictment with
armed violence (720 ILCS 5/33A--2 (West 1994)), unlawful possession
of a controlled substance (720 ILCS 570/402(c) (West 1994)), and
criminal fortification of a residence (720 ILCS 5/19--5 (West
1994)). On April 19, 1995, based upon a psychologist s evaluation,
the State and the defendant entered into an agreed order in which
the State stipulated that the defendant was unfit to stand trial
and that there was a substantial probability that she would not be
rendered fit to stand trial within one year (see 725 ILCS 5/104--16
(West 1994)). The State moved for a discharge hearing. See 725
ILCS 5/104--23, 25 (West 1994).
A discharge hearing was held on June 5, 1996. The following
evidence was adduced at that hearing.
Louis Puscas, an officer with the Aurora police department,
testified that he executed a search warrant at a single-family two-
story residence located at 229 Schiller Avenue in Aurora. There
were 11 other officers involved in the execution of the search
warrant. There were two outdoor entrances to the residence, the
front door and the side door. Officer Puscas and his team
attempted to open the side door. When they were unable to do so,
they entered using a battering ram. A 2- by 6-inch plank of wood
had been nailed across the door s frame from the inside.
On cross-examination, Officer Puscas testified that the search
warrant in this case was a no-knock warrant, which does not give
the individual inside the residence an opportunity to answer the
door first. Officer Puscas never checked the door to see if there
were other means of locking the door, nor did he know if the
windows of the residence were locked. The officer was aware that
the residence was in an area where property offenses had occurred.
Robert Reichardt, an officer with the Aurora police
department, testified that he was in charge of the execution of the
search warrant at the Schiller Avenue residence. He entered the
residence through the front door after the door was smashed in. A
2- by 4-inch block of wood had been nailed to the floor and braced
up against the door.
Officer Reichardt spoke to the defendant, who had been brought
downstairs from the upstairs southwest bedroom. According to the
officer, when he asked the defendant if she owned or rented the
residence, she responded that she rented it and that she did not
sell cocaine, they only use it.
Officer Reichardt further testified that a search of the
upstairs of the residence revealed three weapons in a small room,
designated the southeast room. Two of the weapons were pistols;
both were loaded and were located in a video cassette holder. In
the closet area in that room was a shotgun with one shell in it.
Officer Reichardt estimated that the southeast room was 30 to 40
feet from the southwest bedroom.
Officer Reichardt further testified that two homemade smoking
devices were found in a trash can downstairs and one such device in
an upstairs cabinet. Three white rocky substances were found in a
candy dish in the upstairs hallway. A razor and a white substance
were found on top of a sheet of glass on a dresser in the southeast
room.
Officer Reichardt further testified that a man later
identified as Clarence Boseman was discovered in the residence s
attic area, which he had accessed from the southeast room. A
second man, unidentified, was discovered in the living room of the
residence.
On cross-examination, Officer Reichardt testified that the
substance found in the candy dish weighed less than .60 grams and
would fit on a fingertip. The substance on the dresser weighed .34
grams and would also fit on a fingertip. The officer admitted that
he had to look closely before he could detect the cocaine. He also
acknowledged that the area in which the residence was located was
known for the occurrences of property offenses. He did not check
to see if the doors to the residence could have been locked in any
other way.
Officer Reichardt further testified that he did not know if
the other officers who escorted the defendant downstairs made any
statements to her. He agreed that there was no evidence that the
defendant was any closer than 30 to 40 feet from the nearest
weapon. He never questioned the defendant as to the guns or drugs
that were found in the residence.
William Hull, an officer with the Aurora police department,
testified that he took part in the execution of the search warrant
at the Schiller Avenue residence and was in charge of retrieving
the evidence found there. According to Officer Hull, the southwest
bedroom was no more than 10 feet from the farthest opening to the
southeast room.
Dr. Frank Scommegna, a clinical psychologist, testified that
he performed a psychological evaluation of the defendant s fitness
to stand trial in March 1995. The defendant suffers from
schizophrenia and is in the borderline range of intelligence, which
is one step away from the mentally retarded range. The results of
certain of the tests showed that the defendant is likely to
misperceive cues in her environment and lacks the capability for
critically thinking and assessing her environment.
In response to a hypothetical question in which he was asked
to assume the circumstances of the execution of the search warrant
in this case, Dr. Scommegna opined that the defendant would not
have accurately perceived what was going on in her home. Given
that she could not perceive the situation accurately, she could not
have responded with the statement that was attributed to her by the
police that they only smoked or used the cocaine in the house. Dr.
Scommegna further opined that she would not be able to perceive
that other people kept drugs or used drugs and weapons in her home,
even if the items were out in the open. The defendant s
performances on the tests demonstrated that, even when the
situation was relatively clear and obvious that something was wrong
or out of place, the defendant did not perceive that fact. Dr.
Scommegna did not detect any malingering with the defendant.
The defendant testified that at the time of the execution of
the search warrant she was in the upstairs southwest bedroom of the
residence watching television. She heard a noise at the front door
and then heard the sounds of someone breaking into the residence.
When she moved into the residence, the landlord had placed a 2-by-4
behind the front door because the lock was broken. The back (side)
door also had a board behind it because the deadbolt lock did not
work because the wood was damaged. The boards were there when the
defendant rented the residence. The boards were necessary because
the defendant was afraid of people coming into the residence.
The defendant further testified the police officers showed her
some papers and then began looking in the closet in the southeast
room. The defendant was shown a picture of the closet in which the
shotgun appeared, but the defendant refused to acknowledge that she
saw the shotgun in the picture. She eventually acknowledged that
it looked like a gun the prosecutor had brought into court. She
denied seeing the gun before she saw it in court. She stated that
she hardly ever went into that closet in the residence. An officer
asked if she lived there, to which she responded yes. She did not
say anything else after that. She had never seen the cocaine found
in her house before.
The defendant further testified that she only went as far as
the second or third grade in school. Clarence Boseman, a friend of
hers for 18 years, had been living with her. He never discussed
drugs or guns with her; he knew she was afraid of guns. Clarence
would have friends over, but she did not know what they were doing.
On cross-examination, the defendant testified that if she went
out she locked the door from the outside. She only put the board
up when she went to bed. Since she does not do drugs, she was
certain she never told the officers that she only used but did not
sell drugs. She stored her clothes in the closet in the southeast
room; the only time she went in there was to get her clothes that
needed washing. She never saw Clarence bring any guns home or
place them in the locked cabinet in the southeast room.
On redirect examination, the defendant testified that she did
not know who put the boards up the night the search warrant was
executed. She thought Clarence had a gun card prior to his arrest
in connection with these charges. The defendant never saw a
shotgun in the closet.
Clarence Boseman testified that he had pleaded guilty to drug
possession and house fortification in connection with this case
against the defendant.
According to Mr. Boseman, the southwest bedroom where the
defendant was found was between six and eight feet from the
southeast room. The defendant kept dirty clothes in the closet
there. Mr. Boseman kept an antique shotgun in the closet covered
up with other things. He never told the defendant the gun was
there because he knew she was afraid of guns. He had two pistols
that he kept in a locked cabinet in the closet area of the
southeast room. He had the guns for protection, but he did not
tell the defendant about them. The cocaine in the candy dish was
his; he had purchased it off the street a few hours before the
police executed the search warrant. He never told the defendant
that he had brought cocaine into the house. The smoking devices
also belonged to him. When the police entered the residence, he
hid in a crawl space in the southeast room. After the police found
him, he was brought downstairs.
Mr. Boseman further testified that he was present when the
landlord put the board on the front door because there was no lock
on the door. On a day-to-day basis, Mr. Boseman would put the
board up, but it was up most of the time because they used the side
door more frequently. Mr. Boseman put the board up on the side
door because his nephew kicked the door open and, as a result,
there was no way to lock the door. The damaged door was reported
to the police. There was a slam lock, but nothing that would
hold.
Officer Reichardt, recalled by the State, testified that the
cabinet in which the guns were found was closed but not locked.
However, it was possible that the key was in the lock.
In reaching its decision, the trial court stated that it found
the testimony of Officers Puscas, Reichardt, and Hull to be
credible. It found that Clarence Boseman was not a credible
witness and that the defendant s testimony was highly incredible,
particularly in light of her attempt to exculpate herself by
refusing to see the shotgun in the picture depicting the closet
area in the southeast room. Even taking Dr. Scommegna s testimony
into account, the trial court concluded that it was clear from the
evidence that the defendant understood that cocaine was illegal and
that she constructively possessed it, especially by her statement
to the police that they only used cocaine as opposed to selling it.
The trial court further found that the defendant had kept the
residence in a fortified condition based upon the presence of the
boards, which, although they kept out unwanted intruders, also kept
out the police from a place where drugs were kept.
Finally, the trial court determined that the defendant was
aware of the shotgun in the closet since she kept her clothes and
other things in that closet and, further, that the gun was very
close to the room where she was discovered by the police. Further,
although the defendant and Mr. Boseman testified that the cabinet
where the pistols were found was locked, the police found it
unlocked. The trial court, therefore, did not acquit the defendant
of the charges. See 725 ILCS 5/104--25 (West 1994). This appeal
followed.
A circuit court s ruling on a motion to suppress evidence is
generally subject to reversal only if manifestly erroneous. People
v. Krueger, 175 Ill. 2d 60, 64 (1996). In addition, a reviewing
court will defer to the trial court s determination of the
credibility of the witnesses and its resolution of the conflicts in
the testimony. People v. Riddle, 258 Ill. App. 3d 253, 257 (1994).
In the present case, no testimony was taken and the parties
submitted only written memoranda in support of their respective
positions. For the purposes of the motion to quash the search
warrant, the facts were uncontroverted. Therefore, a question of
law is presented, and we will conduct a de novo review of this
issue. See Krueger, 175 Ill. 2d at 64.
The defendant contends, first, that her motion to quash the
search warrant in this case should have been granted because
subsection (b)(4) of the no-knock statute is unconstitutional (725
ILCS 5/108--8(b)(4) (West 1994)) and because no exigent
circumstances existed that would warrant a no-knock intrusion.
Officer Reichardt s affidavit in support of the no-knock
search warrant in this case stated that on two occasions a
confidential informant had purchased cocaine at the Schiller Avenue
residence from an individual identified as Clarence Boseman.
Paragraph 6 of the affidavit provided as follows:
6. Affiant was advised by the confidential source that
on both dates that crack cocaine was purchased from the
residence at located at 229 Schiller Avenue Aurora, Kane
County, Illinois both the front door and the side door on the
north side of the residence had wooden barricades on the doors
to prevent entry into the residence. Therefore based on the
above Affiant is requesting the person executing the warrant
may make entry without first knocking and announcing his
office.
Following the submission of memoranda by the parties, the
trial court found that exigent circumstances existed for the
issuance of the no-knock search warrant and that subsection (b)(4)
did not violate the defendant s constitutional rights.
The fourth and fourteenth amendments to the United States
Constitution (U.S. Const. Amend. IV, XIV), as well as our Illinois
Constitution (Ill. Const. 1970, art. I, 6) prohibit the government
from violating a person s right not to be subject to unreasonable
searches and seizures. See Krueger, 175 Ill. 2d at 65. The
underlying command of the fourth amendment is that searches and
seizures by governmental officials be reasonable. Krueger, 175 Ill. 2d at 65. Part of the reasonableness requirement under the
fourth amendment is whether the police complied with the knock-and-
announce rule. Krueger, 175 Ill. 2d at 65-66; see Wilson v.
Arkansas, 514 U.S. 927, 131 L. Ed. 2d 976, 115 S. Ct. 1914 (1995).
Since Illinois has no statutory requirement that officers
knock and announce their authority prior to entering a dwelling,
the propriety of a no-knock entry is to be determined by
constitutional standards. People v. Condon, 148 Ill. 2d 96, 102
(1992). Although the failure of the law enforcement officers to
knock and announce is not a per se constitutional violation, the
presence or absence of such an announcement is an important
consideration in determining whether a subsequent entry to arrest
or search is constitutionally reasonable. Condon, 148 Ill. 2d at
102-03. The supreme court described the purpose behind the knock-
and-announce rule as follows:
The purpose of the knock-and-announce rule is to notify the
person inside of the presence of police and of the impending
intrusion, give that person time to respond, avoid violence,
and protect privacy as much as possible. [Citation.] Officers
may be excused from the knock-and-announce requirement if
exigent circumstances exist sufficient to justify the
intrusion. [Citation.] Where exigent circumstances exist,
the failure of the police to knock and announce their
authority and purpose in execution of a search warrant for
narcotics does not violate the fourth amendment right against
unreasonable searches and seizures. [Citation.] Exigent
circumstances may encompass such considerations as danger to
the police officers executing the warrant, or the uselessness
of the announcement, or the ease with which the evidence may
be destroyed. Condon, 148 Ill. 2d at 103.
In 1992, the legislature amended section 108--8 of the Code of
Criminal Procedure of 1963 to provide certain types of exigent
circumstances the existence of which would authorize the issuance
of a no-knock search warrant. 725 ILCS 5/108--8(b) (West 1992).
Section 108--8(b) provides in pertinent part as follows:
(b) Upon a finding by the judge issuing the warrant that
any of the following exigent circumstances exist[s], the judge
may order the person executing the warrant [to] make entry
without first knocking and announcing his office:
(1) the presence of firearms or explosives in the
building in an area where they are accessible to any
occupant;
(2) the prior possession of firearms by an occupant
of the building within a reasonable period of time;
(3) the presence of surveillance equipment, such as
video cameras, or alarm systems, inside or outside of the
building;
(4) the presence of steel doors, wooden planking,
crossbars, dogs, or other similar means of preventing or
impeding entry into the building. 725 ILCS 108--8 (b)
(West 1994).
In People v. Krueger, our supreme court held that subsection
(b)(2) of the above statute was unconstitutional. After reviewing
the history of the knock-and-announce requirement, the court
rejected the State s argument that subsection (b)(2) is
constitutional because it recognizes a legitimate exigent
circumstance. The court noted that an exigent circumstance does
not arise from the mere presence of firearms in a building to be
searched; rather, the officers must have a reasonable belief that
the weapons would be used against them if they were to knock and
announce. Krueger, 175 Ill. 2d at 68; see Condon, 148 Ill. 2d 96.
The court concluded that a no-knock entry based solely on the
occupant s prior possession of firearms violates the constitutional
requirements of reasonableness and that, therefore, subsection
(b)(2) was unconstitutional. The court also rejected the State s
further argument that, because it is a neutral and detached
magistrate who determines whether exigent circumstances exist in
any given case, Condon is distinguishable. However, the court
pointed out that the statute defines the exigent circumstance and
authorizes a no-knock entry solely on this so-called exigent
circumstance, which the court had found to be unreasonable.
Krueger, 175 Ill. 2d at 69-70.
We believe the Krueger rationale applies in this case as well.
The focus in the present case is subsection (b)(4) where the
exigent circumstance is the presence of devices used to impede the
entry into the building. We note, with interest, that the State
does not discuss the decision in Krueger or its implications in its
argument that subsection (b)(4) is constitutional.
We find reasonableness to be lacking from subsection (b)(4).
That subsection requires only that devices impeding entry into the
building be present. The statute does not require that the purpose
of the devices is to impede the lawful entry into the building be
present or that the devices are there specifically to impede the
police from entering the building to conduct a lawful search. As
the statute reads now, the use of a metal or wooden bar to secure
a sliding glass door or the presence of a pack of poodles would be
sufficient to authorize the issuance of a no-knock search warrant.
The statute does not take into consideration that law- abiding
persons, in an effort to protect their property, are often forced
to resort to utilizing the devices in subsection (b)(4) in order to
protect their property against unwanted intruders; such devices are
not always intended to impede the entry of the police. See United
States v. Dupras, 980 F. Supp. 344, 348 (D. Mont. 1997) (a
fortification consisting of a deadbolt and a chair or something
behind the door is not beyond that contemplated by the average
citizen and does not justify smashing down an entryway with a steel
battering ram). But see United States v. Stowe, 100 F.3d 494,
499 (7th Cir. 1996) (no-knock entry justified where informant had
observed a gun in the apartment, the apartment had steel doors, and
the defendant was a convicted felon operating under an alias);
United States v. Johnson, 643 F. Supp. 1465, 1471 (D. Or. 1986)
(no-knock entry justified where the apartment was protected by a
heavy wood and metal door that opened out, was difficult to open,
and was so heavily fortified that an officer lost his balance and
fell down a staircase trying to pry open the door).
In the present case, the only exigent circumstance cited was
the presence of wooden barricades blocking the doors to the
residence. The affidavit did not state that the informant had
difficulty gaining access to the residence because of these
barricades, nor did the affidavit set forth that the informant
stated that the barricades were in place to prevent a raid by the
police. There is nothing in the affidavit that suggests that the
purpose of the barricades was to allow the occupants enough time to
destroy evidence. See Riddle, 258 Ill. App. 3d at 259 (the
warrant or the record must show that the occupants of the premises
had devised a means for the quick destruction of evidence;
otherwise, the mere presence of drugs would not provide exigent
circumstances). In fact, while the affidavit in this case refers
to two drug buys in the residence by the confidential informant,
there is no reference in the affidavit as to the amount of drugs
purchased or that a large quantity of drugs was on the premises.
Further, there was no statement in the affidavit that Clarence
Boseman was dangerous or expected to be armed.
Finally, the quantity of drugs recovered in this case amounts
to two fingertips worth. The State makes the ingenious argument
that this indicates the defendant and Boseman had sufficient time
to dispose of the drugs before the police entered, thus justifying
the no-knock warrant. The search of the residence did not reveal
any evidence that any drugs had been disposed of prior to the entry
of the police. There was nothing in the affidavit indicating that
the drugs in the residence were situated such that they could
easily be destroyed. In fact, the affidavit did not indicate that
the informant told the police that drugs were stored in the
residence, only that the affiant believed that a search of the
residence would reveal drugs. Moreover, the defendant was found in
her bedroom watching television, and Boseman was found in a crawl
space. Given the swift entry of the police, it is hardly likely
that either of them would have had the time to dispose of the drugs
and resume the locations the police found them in.
In this case, the no-knock warrant was issued solely on the
basis of barricades blocking the doors. The statute defines the
presence of barricades as an exigent circumstance without any
consideration as to whether the existence of the barricades posed
a danger to the police, would provide an opportunity to dispose of
evidence, or whether the customary knock and announce would be
futile. See Condon, 148 Ill. 2d at 105. To allow no-knock entries
based solely upon the existence of devices utilized by the public
to keep themselves and their property secure violates the
constitutional requirement of reasonableness. We hold therefore
that subsection (b)(4) is unconstitutional. See Krueger, 175 Ill. 2d at 69. We also agree with the defendant that based upon the
above facts there were no exigent circumstances that justified the
entry of the police officers without knocking and announcing their
authority.
The State argues that in the event this court determines that
subsection (b)(4) is unconstitutional the evidence in this case is
still admissible against the defendant based upon the good-faith
exception to the exclusionary rule found in Illinois v. Krull, 480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987). The State
acknowledges that in Krueger our supreme court declined to follow
Krull but argues that the evidence seized in the search in this
case should be admissible under the exception to the exclusionary
rule established in United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984).
In United States v. Leon, our United States Supreme Court
held that the fourth amendment exclusionary rule will not bar the
use of evidence obtained by a police officer who reasonably relied
in good faith on a search warrant issued by a neutral and detached
magistrate but ultimately found to be unsupported by probable
cause. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405;
Krueger, 175 Ill. 2d at 70-71. The Supreme Court s decision in
Krull extended the good-faith exception to the use of evidence
seized by a police officer who in good faith relied on a statute
that authorized a warrantless administrative search but was later
held to be unconstitutional. (Krueger, 175 Ill. 2d at 71; Krull,
480 U.S. at 347-49, 94 L. Ed. 2d at 373-75, 107 S. Ct. at 1165-67.
A major underpinning of the majority s decision in Krull was its
determination that legislators are not inclined to act in
contravention of fourth amendment values; as a result, the majority
found no evidence that the exclusionary rule is necessary to deter
legislators from enacting unconstitutional statutes. Krueger, 175 Ill. 2d at 71; Krull, 480 U.S. at 349-52, 94 L. Ed. 2d at 375-77,
107 S. Ct. at 1167-69.
In Krueger, our supreme court held that the exclusionary rule
arising out of our state constitution (Ill. Const. 1970, art. I.
6) continues to afford the protection abrogated by Krull.
Krueger, 175 Ill. 2d at 73-74. However, the court went on to note
that its decision did not impact the Leon good-faith exception.
Krueger, 175 Ill. 2d at 76. While this would appear to give
credence to the State s argument in this case, the court cited
Justice O Connor s dissent in Krull, which distinguished Leon from
Krull. After noting that there is a 'powerful historical basis
for the exclusion of evidence gathered pursuant to a search
authorized by an unconstitutional statute (Krueger, 175 Ill. 2d
at 72, quoting Krull, 480 U.S. at 362, 94 L. Ed. 2d at 383, 107 S. Ct. at 1173 (O Connor, J., dissenting, joined by Brennan, Marshall
and Stevens, JJ.)), Justice O Connor drew a clear distinction
between the legislator and the judicial officer who mistakenly
issued the warrant in Leon, stating as follows:
'The judicial role is particularized, fact-specific and non-
political. Judicial authorization of a particular search does not
threaten the liberty of everyone, but rather authorizes a single
search under particular circumstances. The legislative act, on the
other hand, sweeps broadly, authorizing whole classes of searches,
without any particularized showing. A judicial officer s
unreasonable authorization of a search affects one person at a
time; a legislature s unreasonable authorization of searches may
affect thousands or millions and will almost always affect more
than one. Certainly the latter poses a greater threat to liberty.
Krueger, 175 Ill. 2d at 72-73, quoting Krull, 480 U.S. at 365,
94 L. Ed. 2d at 385, 107 S. Ct. at 1175 (O Connor, J., dissenting,
joined by Brennan, Marshall and Stevens, JJ.).
The 'exclusionary rule is designed to deter police misconduct
rather than to punish the errors of judges or magistrates.
People v. Turnage, 162 Ill. 2d 299, 307 (1994) quoting Leon, 468 U.S. at 916, 82 L. Ed. 2d at 694, 104 S. Ct. at 3417. Thus, the
State argues that excluding the evidence in this case would do
nothing to deter future police conduct. The State, however, misses
the import of Justice O Connor s words, cited with approval in
Krueger, to the effect that legislators also need to be deterred
from enacting unreasonable authorizations for searches. Moreover,
the lack of a remedy leaves no incentive for the aggrieved
defendant to challenge the statute as unconstitutional. Kreuger,
175 Ill. 2d at 73.
We therefore reject the State s argument that the evidence in
this case is admissible under the good-faith exception found in
Leon. Since the search warrant in this case was obtained pursuant
to a statutory provision that we have determined was
unconstitutional, the provisions of our State constitution require
that the evidence obtained against the defendant as a result of the
search in this case must be suppressed. Krueger, 175 Ill. 2d at
73-74; Ill. Const. 1970, art. I. 6.
Nonpublishable material under Supreme Court Rule 23 omitted.

We therefore reverse the order of the trial court denying the
defendant s motion to quash the search warrant. We also reverse
and remand the cause for a new trial on the unlawful possession of
a controlled substance charge. We reverse the trial court s
findings of not not guilty on the offenses of armed violence and
criminal fortification of a residence.
The judgment of the circuit court is reversed in part and
reversed and the cause remanded in part.
Reversed, reversed in part, and remanded in part.
GEIGER, P.J., and INGLIS, J., concur.