mr chief justice animal justice of the supreme court counsel may please the court i am assistant state's attorney allen spellberg and i represent the people of the state of illinois in this case the appellate court reverse defendants conviction based upon a claim never raised by the defendant never responded to by the people in unsupported by you the facts or the law the facts of the case are simple the defendant was convicted of possession of controlled substance  at the trial the people stablished that she was in possession of twenty one packets of cocaine amounting to just over one gram of cocaine the defense offered a trial not only defense testimony claiming that it was not her drugs but also the testimony of terri matthews the leaseholder and resident of the one bedroom apartment in which the defendant was found who claimed that the consensus search which was obtained by the police was coerced from her the trial court rejected the defense testimony around from the defense evidence it was established that she was an overnight casting for that basis that fenton did have a reasonable expectation of privacy in the apartment allowing her to challenge the search of the apartment however her expectation of privacy did not defeat matthew's ability to grant valid consent to search her own apartment and that was where the appellate court error occurred in this case the appellate court in this case ruled that the defense attorney was ineffective for failing to court erred in that it became an advocate for the defendant this court has long held that it is improper or other than for jurisdictional reasons for reviewing courts to search the record for an argued or on brief reasons in order to reverse the judgment judgment based upon those claims that were never raised by the parties in the course should restrict itself to those claims that are raised by the parties council if we agree with you that they properly reach them for free is it appropriate for this that it was inappropriate for the attorney to do that but the adversarial nature of our system requires the parties to bring the issues forth the defendant did not bring this issue forth you appellate courts and even in this court the defendant does not truly claim that the properly reached the conclusion instead what the defendant claims is that there may still be factual questions available but that's not consistent with what the appellate court ruled the appellate court ruled that the that matthews did not have the lawful ability to grant an at all given the fence sleeping in the bedroom in the apartment and that but that her expectations privacy is an overnight gas defeated matthews ability to grant any consent in itself at any rate would be were looking  well your honor is this quote well knows that the proper standard for reviewing evidence when shelton there's a challenge to sufficiency the evidence is that it must be taken in the light most favorable to the prosecution and in this scenario the evidence established beyond a reasonable doubt that  defendant was in joint possession in common possession of those drugs that were found in that bedroom and the nightstand next to the bed in which she was sleeping certainly the trier of fact could have rejected any argument that she was not in possession that they belonged to her boyfriend who was in the bed with her at the time also but the trial for the trial court didn't accept that argument rejected those grounds and credibility and determine that these were appropriate for them to be heard drugs under excuses that they were her drugs in the she was in possession of them and that ruling is entirely consistent with this court's decision in people versus schmalz where in this court held that the mere fact that there are other people in the room who could have potentially been in possession of those drugs doesn't defeat the ability of the trier of fact to determine that the defendant in that case it was a girl in the house fit belonging to two man who was in a bedroom with several other people as they were partying and when the police officer found them to gain possession of the marijuana that he she was charged and she was convicted and this court ultimately determined that under the laws of constructs of possession actual constructive possession she was properly convicted this case is entirely a controlling under schmalz and there's no reason for this court's depart from the ruling in schmalz to rule that the defendant here was not properly convicted defendant here had that reasonable expectation of privacy but the legal question here and the question which the public workout wrong is whether or not that expectation of privacy defeated terry matthews ability to consent to the search in her own home and that's where the appellate court was wrong and that's why validity of the search because the law is clear that anyone who has common or apparent authority over the premises has the ability to give lawful invalid consent to the search and that the police are entitled to rely upon that we get back to that but regardless as to whether or not the form specifically refers to the common areas or the whole apartment or whatever specifically provided this was a one bedroom apartment in which charing matthews was not only the lease holder but the resident she clearly had the authority to grant the consent to search to her own bedroom in the case law is clear which supports that in united states versus matlock in a people versus infant simpson both the united states supreme court in this court made clear that the fact that someone other than the defendant has granted consent to search over the property is more than sufficient to to validate the search in the reason why is when people share property when they share homes when they live in other people's homes when they are together in some way you establish the risk that other people have the ability to use and see your property and can grant valid consent and so in people versus simpson in specific specifically this court held that a resident and lease holder of an apartment could rent can answer and i can't speculate as to where she may have been in any particular point but the key to the legal analysis is that even if terry matthews didn't have the actual common authority to grant the the search he she still had the appar in the cases of illinois versus rodriguez and people vs ball both the u s supreme court in this court made clear that if police officer is reasonable and relying upon a person's assertion of authority to grant consent when the circumstances establish that they would reasonably believe that they have the authority to do so certainly the leaseholder and the residents of the single bedroom apartment would be reason would appear to have the authority to grant consent to search the entire apartment and so for that reason it was reasonable for the police officers at a minimum to rely upon that assertion of apparent authority it's our position that the record as it is it is established right now clearly demonstrates that she had the actual authority to do so but even if she didn't she still had the apparent so well your honor that was a question that was asserted by the defense at the trial and it was rejected by the trial court the defense attorney raise that evidence through terry matthews made that argument in closing our going to the trial court as to why the defendant should not factual difference in what occurred by the court and you know want and will not be doing here no your honor there is not and clearly this court does have the authority and that is why we presented in our brief not only an assertion that the  was wrong as a matter of law and just to take a step back the appellate court raised this issue on its own without any reference from the defendant without any argument from the people it was apparently raised at the oral argument in one or two questions but beyond that no decision was ever made until it restricts opinion announcing that the lease holder and resident of the one bedroom coming could not as a matter of law grant valid consensus search that apartment a court's opinion that the court was unaware of this precedent it did not reference it in any way it made assertions which were inconsistent with the precedent however even after the people filed the petition for a hearing establishing ruling when it exceeded its exceeded its authority when it reached an issue which has never been raised by the parties and if this court reaches the merits to clearly declare that there is nothing inappropriate with an attorney failing to file a motion to quash les good morning runners my name is elizabeth body and i wrote this and aptly adam arguments before i respond to the state's contentions i'd like to point out to this court that it does not need to resolve them because this court can instead reverse given his conviction outright due to the the drugs weren't plainview but keep in mind we're not talking about a large sum of drugs are not talking about a kilo of cocaine that would have been obvious to anyone we're talking about one point eight choirs of cocaine that right when he went right obviously very small packets and this evidence was on a night stand that was within arm's reach of the bed but we don't know on what side of the bed the night sam was located we don't know on what side of the bed that immigrants were sleeping so we can't say that the drugs were within arm's reach of givens because givens could have been on the side of the bed that was not next to the nightstand and if she was sleeping on the opposite side of the bed she may not have seen the drugs that were on the nightstand assuming nothing was even blocking your view she may not have seen the drugs that were on the opposite side of the bed especially drugs that were a small amount one point eight grams of cocaine could have easily gone unnoticed by givens also he answers testified that she was half asleep in his bedroom so we don't we have something less than mere presence here we have mere presence while half asleep in a room containing drugs yes the officer said the drugs were in his plain view that doesn't mean they're visible to givens because they could have easily gone unnoticed by humans assuming they were in that room when she was awake which we don't even know there's no evidence that the drugs were in that room before she went to bed and when she was awake all we know is that the evidence was in that room when she was half asleep according to the officers one's mere presence will have to sleep does not create an abiding conviction of guilt and that's what we have here we have no fingerprint evidence should it make an incriminating statement she didn't try to hide the drugs we have no mere presence while half asleep and this case is completely distinct not at all like a small since small as the defendant was in a small room there is considerable marijuana hoke smoke and haze there's large drug paraphernalia that was obviously noticed brought the defendant meeting incriminating statement to the police officer  there it was obvious that the defendant knew about the drugs here there is insufficient evidence that that givens knew about the drugs in the room your presence will have to sleep simply is not enough there's there's not evidence that the drugs were visible to did mention it during well argument in question the attorneys about it during oral argument but again it was a slight variation of the issue that was that was actually raised the state thinks the appellate court should have just ignored this issue should have just pretended that agree that injustice would result not only to the criminal defendant but to the integrity of the judicial system as well but couldn't the forfeit privacy issue be raised in a post conviction when there are enough facts in the record as there was in this case iraq the issue should be raised authority to consent to the search on matters near the site of interest in the property thinking for an automatic right to consent to the search of the bedroom that was occupied exclusively by givens and a boyfriend keep in mind that givens wasn't an ordinary house because she was a house guest who had power and capacity to invite her boyfriend over to spend a night with her and she exercise that power and invited her boyfriend spend a night in that room with her she stayed in a part of bedroom now economy and the house she close a door matthews to support their privacy determination but i see they left out the sentence from the car case and i wondered what were to make of this let me quote the sentence from the overnight guest perspective he shelter in another song precisely because it provides him with privacy a place where he and his possessions will not be disturbed by anyone but its host and knows his host allows inside what a way to m well you know i think in the in the majority of cases the host will have authority to consent to a search of the rooms and her home or apartment but that's not never a case in and in this case because there are enough territories questions about her authority to consent to the search i searched that given his right to privacy here trumps matthews authority to consent to the search of that bedroom in light of the facts that i just mentioned there there are no but yes it depends on the totality of the circumstances and case and here to tell you the circumstances indicate that there was a question of fact regarding the authority to consent to search and sure that kevin's and her boyfriend exclusively occup room and reason expected the values in the room to mean private as to the voluntariness of the consent again there are questions regarding regarding this issue as well that should have been litigated the police officers testified they received a tip from a confidential informant that drugs were being sold out of this program now suspiciously meaning you get a warrant and even try to get a warrant they instead went to the apartment where they just happened to run into matches outside and just happened to neighbor who did who happened to be outside testified that she saw police officers make these up against the wall outside the apartment building go through pockets take out her keys and go inside of her apartment chiles never saw matthew sign any documents outside of course we fatima given this testimony who testified that she was in the bedroom when three three saucers rushed in handcuffed her to her boyfriend brought the two to the living room searched the apartment and then obtained the consent to search the sign consent search form now contrary to the state's argument the trial court never ruled on the credibility of these defense witnesses in finding fatima given's guilty in the trial court said judging the credibility of the witnesses as to the possession of the lesser included offense of a controlled substance the possession of a controlled substance i find in fact my givens guilty the trial judge never had the opportunity to rule on the credibility issue should have been litigated family given is deserves to have this issue litigated and counsels ineffective for not pursuing this motion this court should therefore the man is case for hearing on the matter briefly your honor so i can just correct some of the statements that were made first off just to clarify the poll court here did not simply remain on the matter for a hearing it explicitly reversed the defendant's conviction it reversed the defense conviction because it found as a matter of law the terry matthews could not granted consent to search and that therefore the attorney was ineffective for failing to make a motion to quash arrest and suppress evidence that is not what defense counsel disordered occurred in this case instead defense counsel sort of that the appellate court recognized that there were some questions to be determine moreover i just want to point out that the fact that there may have been questions raised the place to resolve those questions are in a post conviction proceeding not in a direct appeal where the appellate court implies its own finding of an effect this is of counsel because it ignores the fact that the attorney has the ability to look at the current state of the law and make a strategic decision as to what is the best method of proceeding in this case any reason or attorney would have looked at the extensive body of law from both the us supreme court and from this court regarding both common and apparent authority and determine that there would be no basis to file a motion in regards to the assertion regarding the valentinus of the consent and that it was raised too late and should have been litigated earlier again the fans are going to north of the strategic decisions made by the defense attorney in this case the defense attorney decided that the best place to raise the question of terri matthews assertion that she was coarse and giving the consent was not in a separate motion but at the trial and that's a legitimate decision because at the trial the attorney would have no burden of proof to he would certainly have put a large hole in the prosecution's case and so therefore it was certainly appropriate to wait until the trial to litigate this issue instead of trying to do it beforehand and giving the state an earlier opportunity to cross examine this matthews also in regard to counsel's assertion that credibility was not made of credibility her mission was not made when she pointed out that the trial court specifically said credibility as to the lesser included offense well the reason why the trial court stated that was because the court had already granted a motion for directed verdict and the charged offense of possession of a controlled substance with intense of the liver so at the time that the court was making its findings and specifically its credibility findings it was only considering the lesser included offense of possession of a controlled substance and so therefore when the court stated that based upon the evidence that was presented considering only the proper evidence that was presented judging the credibility of the witnesses with regard to the lesser included offense of possession  there will be a finding of guilty the court was explicitly making it credibility determination regarding the witnesses the court was clearly rejecting the defense evidence the defendant's testimony terry matthews testimony instead it was crediting the people's witnesses including the rebuttal testimony of officer steven lance who specifically denied coercing any consent from terri matthews and explained the manner in which he obtained her voluntary consent to search the apartment finally i just wish to point out that counsel got up here and asserted that the people have offered no case where it says that it is inappropriate for the appellate court to do what it did here which is to identify an issue suicide day to search the record for for wrongs to rights and to