People v. Cope

No. 2--97--0162
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lee County.
)
Plaintiff-Appellee, )
) No. 96--CM--824
v. )
)
BRENDA J. COPE, ) Honorable
) Martin D. Hill,
Defendant-Appellant. ) Judge, Presiding.
________________________________________________________________

JUSTICE BOWMAN delivered the opinion of the court:
Following a bench trial, defendant, Brenda J. Cope, was
convicted of resisting or obstructing a peace officer (720 ILCS
5/31--1(a) (West 1996)). The trial court sentenced her to one year
of conditional discharge and 30 hours of public service work.
Defendant appeals, arguing that she was not proved guilty beyond a
reasonable doubt. We reverse.
Andrea Kozuch testified that she was 13 years old and a
resident of Nachusa Lutheran Home (Nachusa Home). She ran away on
the afternoon of October 15, 1996. At 1 a.m. on October 16, she
was walking around the town of Dixon. She became scared when some
men in a truck began following her and asking if she wanted a ride.
She met defendant when defendant was walking out of a bar.
Defendant asked her what she was doing out so late, and Kozuch
responded that people were following her and that she had to go to
the bathroom.
Defendant was the owner of First Street Diner, which was
closed at the time. Defendant took Kozuch there and let her use
the bathroom. Defendant locked the door after they were inside.
Kozuch watched T.V. for a while and eventually asked to leave.
Defendant told her not to leave, that she should sleep there, and
that they would take care of everything in the morning.
Defendant and Kozuch talked about Kozuch having run away, and
Kozuch asked if she could call her mother. Defendant let her make
the call, and Kozuch talked to her mother for a short while before
the connection went bad. Kozuch called back and defendant got on
the phone, called Kozuch's mother a liar, and said she did not
treat her daughter right.
The police arrived at approximately 1:30 a.m. and tried to get
in the door of the diner, but it was locked. When the police came,
defendant told Kozuch that she was not going to let her go and that
they would take care of it in the morning. Kozuch ate ice cream
while defendant spoke to the police. Kozuch testified that she
asked defendant two or three times to let her go, and defendant
would not open the door.
Defendant let Kozuch sleep on a chair that folded out into a
bed. Kozuch heard the police yelling into the diner at defendant,
and defendant told them she and Kozuch would take care of
everything in the morning. Kozuch finally left the diner shortly
after 8 a.m. when an employee who was coming to work unlocked the
door and let the police in.
On cross-examination, Kozuch conceded that the reason she
asked to leave the restaurant was that she wanted to avoid being
picked up by the police. She explained that when she asked to
leave it was before the police arrived, because she wanted to find
someplace else to stay. Kozuch testified that she never feared
that she was in any danger from defendant. Kozuch further conceded
that she was never restrained in any way and could have gone to the
window to let the police know if she had been in any danger.
Kozuch denied that she ever threatened suicide that night or
told defendant not to turn her over to the police. She explained
that she told defendant that she had previously tried to kill
herself when she was in a psychiatric ward at SwedishAmerican
Hospital. She also told defendant that she felt she had been
touched in an unlawful manner at the Nachusa home.
Bruce Luther of the Dixon police department testified that he
was working the 11 p.m. to 7 a.m. shift on October 15-16, 1996. He
received a dispatch that a runaway was at the First Street Diner.
The dispatcher had received a call from the Nachusa Home. Luther
went to the back door and Officer Gillfillan went to the front
door. They knocked on the doors and said they were police officers
but received no response. They tried both doors and found that
they were locked. They had the dispatcher call the restaurant, and
defendant told the dispatcher she would not open the door.
When Officer Palumbo took over for Luther, Luther went back to
the station to do some paperwork. He received a call from
defendant, who told him to stop harassing her. Defendant said that
she needed to get some sleep and would open her business in the
morning. Luther told her that they were trying to take care of a
call they were handling and that she needed to turn the child over.
Luther went back to the restaurant until he was relieved by Officer
Whelan at 7 a.m. He then went back to the police station and
signed the complaint against defendant.
On cross-examination, Luther testified that defendant never
displayed any type of physical resistance. She just would not open
the door or turn the juvenile over. He conceded that he was
investigating a nonfelony complaint and did not have a warrant but
wanted to be let inside defendant's restaurant. He also testified
that he did not necessarily want to enter. He just wanted the
minor to be released.
Officer Les Shaw of the Dixon police department testified that
he worked the 7 a.m. to 3 p.m. shift on October 16, 1996. He went
to the First Street Diner at approximately 7:45. He found Officer
Gillfillan speaking to defendant and Kozuch. An employee had let
the police into the diner. Shaw handcuffed defendant and took her
to the police station. Defendant was upset and was swearing on the
way to the police station. She complained about the officers
shining flashlights through the windows while she was trying to
sleep.
The defense moved for a directed verdict at the close of the
State's case. The defense argued that defendant had no duty to let
the officers in without a warrant and that she did not physically
obstruct them in any way. The court ruled that she had a duty to
turn over a juvenile runaway. The defense then argued that if that
was the court's position the State had charged the wrong offense
and defendant should have been charged with the petty offense of
refusing to aid a police officer (720 ILCS 5/31--8 (West 1996)).
The court ruled that defendant's conduct was also covered by the
obstructing statute and denied the motion.
The defense recalled Kozuch to testify. Kozuch testified that
she told defendant about the men who had been following her in the
truck and about what she believed to be a sexually inappropriate
contact by a counselor at the Nachusa Home. She believed defendant
was trying to help her. When asked about whether she wanted to
leave the diner to go back to the Nachusa home, she replied "no."
She also testified that the reason she wanted to leave the diner
was that she wanted to get away from the police since she thought
they had seen her. Kozuch also testified that at one point before
the police arrived she went outside the diner to pet a dog and
voluntarily went back inside. When specifically asked if defendant
would have let her leave, Kozuch replied "had the doors locked and
I asked her numerous times if I could leave and she said no, you
can stay tonight, get some rest, some sleep, and we'll take care of
it tomorrow morning."
Defendant testified that on October 16, 1996, at approximately
1:30 a.m., she had just bought some cigarettes at a gas station and
was walking to the diner. She denied that she had been in a bar or
had been drinking. She was going to spend the night at her
restaurant because she did not have a way to get back to her home
in Rock Falls. Kozuch walked up to her and told her that some guys
were trying to bother her and that she had to go to the bathroom.
Defendant told her that she could use the telephone and bathroom at
her restaurant.
Kozuch was unable to get in touch with a friend she tried to
call. Kozuch and defendant both spoke to Kozuch's mother on the
telephone. Defendant told Kozuch's mother where Kozuch was.
Defendant also called Roger Coleman of the Department of Children
and Family Services (DCFS). Defendant called Coleman because
Kozuch said that she would rather die than go back to the Nachusa
Home. Defendant also called the police station but did not
remember if that was before or after the police initially contacted
her.
Kozuch told defendant that a counselor at the Nachusa Home had
rubbed himself on her back side and held her down. When Kozuch
found out that the police were coming, she asked to leave. Kozuch
told defendant that she would commit suicide if she had to go back
to Nachusa. She also held a knife to her throat and told defendant
that she would kill herself if defendant opened the door for the
police. Defendant told Kozuch that she would not open the door for
the police, that Kozuch should calm down and get some sleep, and
that they would take care of everything in the morning.
Defendant left her keys on the counter, and Kozuch slept on a
futon right by the counter. Defendant slept on another futon in
the office. Kozuch initially told defendant that she did not want
to go to sleep because she thought defendant would let the police
in. Defendant said she would not do that but would call her
attorney in the morning and, hopefully, a representative of DCFS
could come and get Kozuch.
Defendant testified that Kozuch could have left the restaurant
at any time that night, but Kozuch never tried to leave. The keys
for the front door were on the counter the whole time. Further, at
one point Kozuch was alone in the kitchen, which had a back door
with just a slide arm for a lock. No key was needed to get out the
back door. Defendant testified that the police repeatedly banged
on the door and shined their lights in the windows and that she was
torn between letting them in and worrying about Kozuch trying to
kill herself. According to defendant, Kozuch was very irate and
upset after talking to her mother. She threatened suicide and
talked about previous suicide attempts. Defendant testified that
her intention all along was to turn Kozuch over to DCFS in the
morning. Defendant said that all she did that night was to try to
help Kozuch because Kozuch's health and safety were at stake and
that she was willing to go to jail if that's what it took to keep
Kozuch from hurting herself. On cross-examination, when asked if
it was true that she would not let Kozuch go when the police
arrived, defendant testified "[a]fter the police were there she
didn't want out. That's when she threatened to commit suicide."
On appeal, defendant argues that she was not proved guilty
beyond a reasonable doubt of resisting or obstructing a police
officer. Defendant contends that she had no duty to open the door
for the police to enter without a warrant and that there were no
exigent circumstances that would have justified the police in
making a warrantless entry.
When a defendant challenges the sufficiency of the evidence
supporting her conviction, the relevant inquiry is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
elements of the crime beyond a reasonable doubt. People v.
Collins, 106 Ill. 2d 237, 261 (1985). The statute under which
defendant was convicted provides as follows:
"A person who knowingly resists or obstructs the
performance by one known to the person to be a peace officer
or correctional institution employee of any authorized act
within his official capacity commits a Class A misdemeanor."
720 ILCS 5/31--1(a) (West 1996).
The complaint charged that defendant "refused to let officers
perform their duties, by locking herself and a juvenile runaway,
Andrea Kozuch, 13 yoa DOB: 05-31-83, in her place of business, 1st
Street Diner, and preventing police officers to [sic] take the
juvenile into custody, said offense being a Class A misdemeanor."
In People v. Hilgenberg, 223 Ill. App. 3d 286, 289 (1991), we
held that the section under which defendant was charged requires an
act of physical resistance. We held that both the terms
"resistance" and "obstruct" implied a physical act or exertion and
that the complaint must set out what physical act of the defendant
constituted resisting or obstructing an officer. Refraining from
physical action or failing to cooperate with the police is
generally not considered the same as resisting or obstructing an
officer. Hilgenberg, 223 Ill. App. 3d at 289-90.
As far as the allegation that defendant locked herself and a
juvenile runaway in her place of business, the evidence did not
show that defendant did this to resist or obstruct the police. The
record did not show that the police were looking for the runaway
and, in response, defendant locked her in the restaurant. Rather,
defendant and Kozuch were already in the restaurant with the doors
locked when the police were called to investigate the matter. The
physical act has to be in response to an authorized act of the
police. By locking the door to her business for the evening,
defendant was not resisting or obstructing any authorized act of
the police.
Because the police did not have a warrant, defendant cannot be
held to have obstructed the police by failing to open the door in
response to their demands. In Hilgenberg, we held that a person
who passively invokes his or her fourth amendment right to refuse
a warrantless entry cannot be charged with resisting or obstructing
the police. Hilgenberg, 223 Ill. App. 3d at 290-94. In Steagald
v. United States, 451 U.S. 204, 68 L. Ed. 2d 38, 101 S. Ct. 1642
(1981), the Supreme Court held that the fourth amendment requires
the police to have a search warrant to enter the premises of a
third party in order to apprehend the subject of a felony arrest
warrant. An arrest warrant is sufficient to allow the police to
enter the home of the person named in the warrant if they have
probable cause to believe the person is inside (Payton v. New York,
445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980)), but the
police would need a search warrant to enter a third person's
property to apprehend that same suspect. Steagald, 451 U.S. at 212
-14, 68 L. Ed. 2d at 45-46, 101 S. Ct. at 1648. Thus, if the
police need a search warrant to enter a third person's property to
apprehend a suspected felon for whom they have an arrest warrant,
we believe they would also be required to have a search warrant to
enter a third person's property to apprehend a juvenile runaway.
We find United States v. Prescott, 581 F.2d 1343 (9th Cir.
1978), instructive. In Prescott, the defendant was convicted as an
accessory after the fact for assisting a suspected felon to hinder
or prevent his apprehension. The court held that the fact that the
defendant would not let the police enter her apartment without a
warrant to apprehend a person suspected of mail fraud could not be
used as evidence against her. The court explained its reasoning as
follows:
"When *** the officer demands entry but presents no warrant,
there is a presumption that the officer has no right to enter,
because it is only in certain carefully defined circumstances
that lack of a warrant is excused. [Citation.] An occupant can
act on that presumption and refuse admission. He need not try
to ascertain whether, in a particular case, the absence of a
warrant is excused. He is not required to surrender his
Fourth Amendment protection on the say so of the officer. The
Amendment gives him a constitutional right to refuse to
consent to entry and search. His asserting it cannot be a
crime, [citation]. Nor can it be evidence of a crime. ***
One cannot be penalized for passively asserting this right,
regardless of one's motivation." Prescott, 581 F.2d at 1350-
51.
Thus, we hold that defendant's refusal to open the door did not
constitute resisting or obstructing the police.
The State suggests that the police would have been authorized
in making a warrantless entry because there were exigent
circumstances, and, consequently, defendant was not justified in
refusing to open the door. We disagree. The State claims that the
exigent circumstance was that the officers needed to take the minor
into protective custody. However, the police knew where the minor
was and had no reason to believe she was in danger. Further, they
had officers watching the front and back doors, and defendant had
spoken to the police, DCFS, and the child's mother. According to
the State's position, the police would never need a warrant to
enter private property if they have probable cause to believe that
a juvenile runaway is on the premises. The State has cited no
authority for such a proposition. Moreover, it is not a crime to
harbor a runaway unless the person does so for 48 hours, and, even
then, it is only a crime if the person does so without the
knowledge of the minor's parents and without notifying the police.
See 720 ILCS 5/10--6 (West 1996).
The State also suggests that defendant was guilty of resisting
or obstructing the police because she refused to turn the minor
over to the police. However, her passive refusal to acquiesce in
this request was not a physical act as required by the statute. If
the State wished to charge her with the petty offense of failing to
aid the police, it could have done so. See 720 ILCS 5/31--8 (West
1996).
The State could have succeeded in showing obstruction if it
could have proved beyond a reasonable doubt that Kozuch wanted to
go to the police when they arrived and defendant prevented her from
doing so. The State tried to establish this at trial by showing
that Kozuch asked to leave even after the police arrived and that
defendant would not let her. Defendant testified that Kozuch did
not want to leave after the police arrived and even threatened to
kill herself if defendant turned her over. Kozuch's testimony on
this point was equivocal. Kozuch did testify that she wanted to
leave before the police arrived because she did not want to be
caught. She also conceded that she never went to the door or the
window to talk to the police and never tried to contact them. She
also testified as follows: "I had been thinking to turn myself in
all that night but I couldn't do it." Further, Kozuch's own
testimony made it apparent that defendant went to sleep in a
separate room and left Kozuch where she could have departed through
either the front or back doors or could have gone to the window to
signal the police. Kozuch never did so. Thus, the evidence
corroborated defendant's version of the events, and the State
clearly did not prove beyond a reasonable doubt that Kozuch wanted
to go to the police and that defendant did not allow her.
The judgment of the circuit court of Lee County is reversed.
Reversed.
THOMAS and HUTCHINSON, JJ., concur.