People v. Accardi

Nos. 2--95--1247 & 2--95--1331 cons.

________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit
OF ILLINOIS, ) Court of Kane County.
)
Plaintiff-Appellee, ) No. 92--CF--1570
v. )
) Honorable
GREGORY ACCARDI ) Thomas E. Hogan and
) John L. Peterson,
Defendant-Appellant. ) Judges, Presiding.
________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit
OF ILLINOIS, ) Court of Kane County.
)
Plaintiff-Appellee, ) No. 92--CF--1838
v. )
) Honorable
HOLLY ACCARDI, ) Thomas E. Hogan and
) John L. Peterson,
Defendant-Appellant. ) Judges, Presiding.
________________________________________________________________

JUSTICE THOMAS delivered the opinion of the court:

Following a stipulated bench trial defendants, Gregory Accardi
and Holly Accardi, were convicted of the unlawful possession of
cannabis (720 ILCS 550/4 (West 1992)). Defendants appeal,
contending that the trial court erred in denying their motion to
suppress marijuana plants seized during a warrantless search of
their property.
On September 13, 1992, Sergeant James Griffith of the Illinois
State Police flew an airplane over portions of Kane County to look
for marijuana growing. He flew at an altitude of 1,000 to 1,100
feet at a speed of 90-95 miles per hour.
He saw what he believed to be marijuana growing on defendants'
property at the intersection of Route 38 and Meredith Road.
Griffith took photographs of the property and gave them to Sergeant
Roy Garcia, who had the film developed. Garcia reviewed the
resulting photos with other agents, including William Powell of the
Illinois State Police Task Force.
Powell decided that he and other members of the task force
would go to defendants' property and try to obtain a consent to
search it. Accordingly, on September 15, 1992, Powell and five or
six other agents drove to defendants' property. One of the
officers knocked on the door and Holly Accardi answered it. The
officer requested that she wake her husband, Greg Accardi. Greg
Accardi then accompanied the officers on a search of the property.
The agents located and confiscated several marijuana plants. Greg
Accardi was arrested and taken to the county jail. No one ever
showed defendants a search warrant.
The marijuana plants grew near a chicken coop immediately
adjacent to defendants' house. A long driveway services the house,
a large barn, and the chicken coop. Trees surround the entire area
encompassed by the three buildings, preventing them from being seen
from either Route 38 or Meredith Road.
Both defendants were charged with the unlawful possession of
cannabis. Defendants moved to quash their arrests and suppress
evidence obtained as a result of the warrantless search of their
property. At a hearing on the motion, defendants testified that
neither of them ever gave the agents permission to search the
property. Greg Accardi specifically denied signing a consent to
search form. However, Powell testified that he presented Greg
Accardi with a consent to search form and that the latter signed
it, using the back of Agent Douglas Lamz as a writing surface. Two
other agents who participated in the search stated that they saw
Greg Accardi sign the consent to search form. Lamz testified that
Greg Accardi was presented with the form, and Lamz believed that he
signed it, although he could not see him do it. Each officer
denied that he forged Greg Accardi's name on the consent form.
Jean Brundage, a document examiner for the Iillinois State
Police, testified that Greg Accardi's signature on the consent to
search form was a forgery. The testimony of Steven Kane, an expert
retained by the defense, was admitted by stipulation. Kane also
concluded that Accardi's signature on the form was forged.
After the hearing, the parties argued the validity of the
consent form. In response to a question by the court whether the
plants could be seized without a warrant because they were in plain
view from the airplane, the State cited Florida v. Riley, 488 U.S. 445, 102 L. Ed. 2d 835, 109 S. Ct. 693 (1989).
The court denied defendants' motion, finding that, pursuant to
Riley, "the curtilage of someone's property is not always subject
to the Fourth Amendment language regarding searches and seizures
especially when there is a helicopter or plane involved." The
court did not make any findings on the consent issue.
The court denied defendants' motion to reconsider. Defendants
then submitted to a stipulated bench trial before a different
judge, preserving the issues raised in the suppression motion. The
court found defendants guilty, and they perfected this appeal.
Defendants contend that the court erred by relying on Riley to
deny their motion to suppress. Defendants argue that the area in
which the plants were found was within the curtilage of their home.
Therefore, the police could not physically enter the curtilege to
seize the plants without a warrant or evidence of some exception to
the warrant requirement.
Ordinarily, a ruling on a motion to suppress will not be
disturbed unless it is manifestly erroneous. People v. Frazier,
248 Ill. App. 3d 6, 12 (1993). However, where the facts and the
credibility of the witnesses are uncontroverted, the issue becomes
solely a question of law, subject to de novo review. Frazier, 248
Ill. App. 3d at 12-13. Here, the facts regarding the flyover and
subsequent warrantless search of the property are essentially
undisputed. Therefore, we review this question de novo.
In California v. Ciraolo, 476 U.S. 207, 90 L. Ed. 2d 210, 106 S. Ct. 1809 (1986), police flying in a fixed-wing aircraft observed
marijuana growing in defendant's yard. The officers then obtained
a warrant and searched the property. Although defendant's yard was
surrounded by a double fence, the inner ring of which was 10 feet
high, the Supreme Court held that the flyover was not a "search"
within the meaning of the fourth amendment. The court found that
defendant's subjective expectation of privacy was unreasonable
because the police made their observations from the public airspace
and thus saw no more than any private citizen could have seen from
the same location. Ciraolo, 476 U.S. at 213-14, 90 L. Ed. 2d at
217, 106 S. Ct. at 1813.
In Florida v. Riley, 488 U.S. 445, 102 L. Ed. 2d 835, 109 S. Ct. 693 (1989), the court followed Ciraolo in holding that a
warrant was not required for an officer's observation of marijuana
from a helicopter hovering 400 feet above defendant's property.
Writing for a four-person plurality, Justice White explained that
Ciraolo held that "the home and its curtilage are not necessarily
protected from inspection that involves no physical invasion."
Riley, 488 U.S. at 449, 102 L. Ed. 2d at 841, 109 S. Ct. at 696
(opinion of White, J., joined by Rehnquist, Scalia, and Kennedy,
JJ.).
Both Ciraolo and Riley held that a warrant was not required
for the initial flyover because that was not a "search." Neither
case held, however, that the police were authorized to physically
enter the property to seize the contraband. In both cases, the
police merely used the information obtained from the flyovers to
secure search warrants. In Ciraolo, the court implicitly
acknowledged that information obtained during a flyover was limited
to this purpose, stating that "[s]uch observation is precisely what
a judicial officer needs to provide a basis for a warrant."
Ciraolo, 476 U.S. at 213, 90 L. Ed. 2d at 217, 106 S. Ct. at 1813.
The Supreme Court has consistently adhered to the principle
that a physical invasion of the home or curtilage requires either
a warrant or some recognized exception to the warrant requirement.
"'Belief, however well founded, that an article sought is concealed
in a dwelling house furnishes no justification for a search of that
place without a warrant.' " Vale v. Louisiana, 399 U.S. 30, 34, 26 L. Ed. 2d 409, 413, 90 S. Ct. 1969, 1971-72 (1970), quoting Agnello
v. United States, 269 U.S. 20, 33, 70 L. Ed. 145, 149, 46 S. Ct. 4,
6 (1925). Furthermore, plain view itself is not an exception to
the warrant requirement. As Justice Stewart later explained:
"[P]lain view alone is never enough to justify the warrantless
seizure of evidence. This is simply a corollary of the
familiar principle discussed above, that no amount of probable
cause can justify a warrantless search or seizure absent
'exigent circumstances.' Incontrovertible testimony of the
senses that an incriminating object is on premises belonging
to a criminal suspect may establish the fullest possible
measure of probable cause. But even where the object is
contraband, this Court has repeatedly stated and enforced the
basic rule that the police may not enter and make a
warrantless seizure." (Emphasis in original.) Coolidge v.
New Hampshire, 403 U.S. 443, 468, 29 L. Ed. 2d 564, 584, 91 S. Ct. 2022, 2039 (1971) (opinion of Stewart, J., joined by
Douglas, Brennan, and Marshall, JJ.).
In People v. Schmidt, 168 Ill. App. 3d 873 (1988), the
Appellate Court, First District, upheld the warrantless seizure of
marijuana plants from defendant's yard because it found that the
area from which they were recovered was not within the curtilage.
The appellate court recognized the rule that "a home cannot
lawfully be entered for the warrantless seizure of contraband
observed in plain view by law enforcement officers from an exterior
vantage point." Schmidt, 168 Ill. App. 3d at 879.
Here, the State does not dispute the trial court's finding
that the plants were found within the curtilage. The evidence in
the record supports this finding. Moreover, the State does not
suggest that exigent circumstances rendered a warrant unnecessary.
Powell testified that the agents had ample time to secure a warrant
and that judges were available for the purpose. We conclude that
the officers' observation of the marijuana did not authorize the
subsequent warrantless entry on the property to seize the plants.
For this reason, defendants' convictions must be reversed.
Anticipating this result, the State requests us to remand the
cause for the trial court to make specific findings on the validity
of the consent to search. Although this issue was the focal point
of the hearing below, the trial court made no specific findings on
this issue, apparently because of its belief that Riley permitted
a warrantless entry and thus rendered consent unnecessary.
In their reply brief, defendants respond that the facts
adduced at the hearing overwhelmingly support the conclusion that
they never consented to the search and that the purported consent
form introduced at the hearing was a forgery. Alternatively, they
maintain that this issue is irrelevant because the agents
unlawfully entered their property before obtaining the consent and,
according to the agents' own testimony, agents had "fanned out"
across the property before the consent form was allegedly signed.
All of the officers testified that Greg Accardi signed the
consent form in their presence and that he was neither threatened
nor coerced prior to doing so. Although defendants denied signing
the form, this merely creates an issue of fact on this question.
Moreover, the fact-finder is not required to accept experts'
opinions on an ultimate question of fact. People v. Mahaffey, 166 Ill. 2d 1, 18 (1995).
Defendants fail to cite authority for their alternative
propositions that the officers could not enter the property even
for the limited purpose of obtaining a consent to search, or that
their "fanning out" across the property prior to the alleged
signing somehow invalidated an otherwise lawful consent. These
facts might be relevant to a totality-of-the-circumstances
determination that a purported consent was in fact involuntary.
Here, however, defendants do not allege that a purported consent
was coerced; they contend that they never signed the consent form.
In summary, we reverse defendants' convictions. We remand the
cause to the trial court with directions to make specific factual
findings regarding the validity of the purported consent to search.
If the trial court determines that neither defendant gave consent
to search the premises then the court shall suppress the evidence
obtained through the search.
The judgment of the circuit court is reversed, and the cause
is remanded with directions.
Reversed and remanded with directions.
McLAREN, P.J., and INGLIS, J., concur.