Filed 7/9/10 NO. 4-09-0863

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

 Plaintiff-Appellant,

 v.

JOHN E. BELL,

 Defendant-Appellee.

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Appeal from

Circuit Court of

Macon County

No. 09CF295

Honorable

Timothy J. Steadman,

Judge Presiding.

_________________________________________________________________

JUSTICE KNECHT delivered the opinion of the court:

In February 2009, the State charged defendant, John E.

Bell, with two counts of child pornography (720 ILCS 5/11-

20.1(a)(6) (West 2008)) based on images found on his computer's

hard drive. In May 2009, defendant filed a motion to suppress

physical evidence, arguing the search and seizure of his computer

was conducted without lawful authority. Following a November

2009 hearing, the trial court granted defendant's motion.

The State appeals, arguing (1) police had actual and

apparent authority to search defendant's computer based on the

consent given by defendant's then-girlfriend, (2) the inevitablediscovery exception applies, and (3) probable cause allowed

police to seize defendant's computer regardless of whether

defendant's girlfriend had authority to consent to the search. 

We reverse and remand.

I. BACKGROUND
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In October 2008, two deputies from the Macon County

sheriff's department arrived at defendant's home after

defendant's then-girlfriend, Penni Matticks, called 9-1-1 to

report she and defendant were involved in a fight. Upon arriving

at the residence, the deputies learned Matticks hit defendant. 

Matticks explained she did so in response to discovering

defendant had been searching the Internet for photographs of

unclothed, underage girls. The deputies obtained signed consent

from Matticks to search the computer located inside the

residence, wherein pornographic images were discovered on the

computer's hard drive. In February 2009, the State charged

defendant by information with two counts of child pornography. 

In May 2009, defendant filed a motion to suppress physical

evidence contending (1) no search or arrest warrant supported the

search and subsequent seizure, (2) no exigent circumstances were

shown to justify the warrantless search and seizure, (3)

defendant never consented to the search or seizure, (4) no other

person who possessed common authority over the areas searched

consented to the search or seizure, and (5) the search and

seizure were not incident to or contemporaneous with a valid

arrest of defendant. In November 2009, the trial court held a

hearing on defendant's motion, wherein the parties presented the

following evidence.

Defendant testified he was the sole owner of the
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residence located at 6376 Kitchen Road in Decatur. No other

names appeared on the residence's title, no one else held any

ownership interest in the residence, and the residence was not

leased to anyone. 

In October 2008, Matticks was defendant's girlfriend

and had lived with defendant at the Kitchen Road residence since

December 2007. Defendant and Matticks had no specific agreement,

such as a lease, regarding Matticks living at the residence. 

Defendant provided nearly all the housewares and furniture,

except for a small bookcase Matticks bought for the laundry room. 

Defendant estimated Matticks stored 8 to 12 boxes of her packed

belongings in the basement. Although Matticks did not have her

own key to the residence, defendant allowed her to use his truck,

which contained a garage-door opener Matticks used to enter the

house. Defendant also testified Matticks knew where he kept a

key hidden outside "in case [he and Matticks] locked [them]selves

out."

Several days prior to the October 20, 2008, incident in

which Matticks called 9-1-1, Matticks approached defendant,

claiming she found objectionable material on the computer. 

Defendant and Matticks argued, and defendant removed the

computer's keyboard and hid it under the bed "because [defendant]

did not want [Matticks] to have any further access to the

computer[] and [he] knew it was disabled without the keyboard." 
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When Matticks asked where the keyboard was, defendant told her he

hid it because he "[did not] want [her] using that computer." 

Defendant testified prior to the removal of the keyboard,

Matticks had full use of the computer. Next to the computer,

defendant kept a Post-It note listing all passwords attached to

accessing the computer, which defendant did not take down when he

removed the keyboard. 

On October 20, 2008, defendant noticed Matticks's

behavior was "aggressive" and "irrational," which led defendant

to believe Matticks was drunk. At one point, Matticks made

inappropriate comments to two workers repairing the septic tank. 

To "calm her down," defendant took Matticks out to lunch. While

in the car after picking up food, Matticks turned off the radio. 

Defendant turned it back on, which prompted Matticks to throw an

unwrapped cheeseburger in defendant's face. When defendant and

Matticks arrived home, Matticks again confronted defendant about

the objectionable material on the computer and then hit defendant

in the face with her fist. Defendant left the house and returned

approximately an hour and a half later, hoping Matticks had

"sobered up." As defendant lay on the sofa, Matticks approached

him from behind and again struck him with her fist, breaking

defendant's glasses. Defendant recalled telling Matticks, "'This

is over. I want you out of here tonight,'" to which Matticks

responded, "'Okay. That's fine. Bring my stuff up out of the
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basement.'"

While defendant moved Matticks's boxes out of the

basement, Matticks picked up the hand truck defendant was using

to move the heavier boxes and threw it at defendant, hitting

defendant and knocking him to the ground. Matticks informed him

she was calling 9-1-1. Defendant did not object to calling the

police but asked Matticks not to use the cellular phone issued to

defendant by his employer. When Matticks refused, defendant

grabbed the phone and handed her his personal cellular phone. In

the 45 minutes between Matticks's 9-1-1 call and the police's

arrival, defendant moved all of Matticks's boxes out of the

basement and stacked them inside the front door. 

When the police arrived, they entered through the front

door, near where defendant had stacked Matticks's boxes. The two

officers separated defendant and Matticks and conducted

interviews of each in different rooms. At one point, the officer

interviewing defendant left to speak with the other and with

Matticks. Upon returning to defendant, the officer asked, "'Tell

me about the kiddie porn that's on your computer.'" Defendant

replied, "'I don't know what you're talking about.'" The officer

handcuffed defendant and moved him into the backseat of a squad

car. For approximately 15 minutes, defendant remained alone in

the car, neither speaking with nor seeing either deputy or

Matticks. Eventually, one officer drove defendant to the police
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station.

On October 21, 2008, defendant's mother bailed him out

of jail. Defendant spent the night at his mother's house. When

defendant returned home the next day, October 22, 2008, he

discovered Matticks and her adult son inside his house. Matticks

told defendant she "'got [in] through the kitchen window.'" 

Defendant observed the blinds on the window were pulled up and

the screen had been removed from the outside and propped against

the front of the house. Shortly after defendant arrived home,

Matticks and her son removed her things from defendant's house

and never returned. After Matticks left, defendant went into his

office and noticed his computer was missing. 

Shirley Bell, defendant's mother, briefly testified she

bailed defendant out of jail on October 21, 2008, and accompanied

him to his house the following day. At defendant's house, she

saw Matticks. Matticks told Bell she entered the house through

the window. Bell had not seen Matticks at defendant's house

since October 22, 2008.

Matticks testified she and defendant dated when they

were younger. Years later, they reconnected, and in "a matter of

weeks" she and defendant "spoke of marriage" and began living

together. Matticks did not recall if she had a key to the

residence and instead "came and went through the garage," using

"the garage door clicker." She did not pay defendant rent but
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gave him $7,200 to put toward his mortgage on the residence,

which defendant returned in full to Matticks "when [she] left,"

"after [she and defendant] broke up." 

On October 17, 2008, Matticks awoke in the middle of

the night to find defendant missing from the bed. She noticed

light coming from underneath the door to the spare bedroom, which

she and defendant used as an office. Matticks opened the door

and discovered defendant using his computer. Upon seeing

Matticks, defendant immediately clicked off the computer's

browsing screen, something Matticks "had never seen him do." 

Although defendant told Matticks he had been checking his e-mail,

Matticks "[felt] like he was doing something that he knew would

upset [her]." She checked the computer's browsing history after

defendant left for work the next morning. The browsing history

revealed defendant conducted a Google search in the previous 12

hours using the words "slim," "teen," "girls," and "porn" and

then proceeded to several of the resulting links, "indicating he

had completed the search *** and visited those links." Matticks

clicked one link in the browsing history, which revealed "images

of what looked to be young [naked] girls in really *** lewd

positions." At that point, Matticks "wanted to talk [to

defendant] and get to the bottom of this" but had no immediate

plans to break off her relationship with defendant or move out of

his house. 
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The following day, Matticks confronted defendant. 

Defendant did not tell Matticks she could no longer use the

computer, and Matticks could not recall whether defendant removed 

and hid the computer's keyboard because she had not used it since

before confronting defendant about the images she found in the

computer's browsing history. 

On October 20, 2008, Matticks grew "aggravated" with

defendant because she had to deal with a malfunctioning sump pump

while defendant "was laying on the couch watching television." 

Contrary to defendant's testimony, Matticks claimed she was not

inebriated and never made rude or confrontational statements to

the workers present at the house to fix the sump pump. She

further denied throwing a cheeseburger at defendant when they

went out to lunch but admitted she and defendant fought about the

radio station during the drive home. Upon arriving home,

Matticks again confronted defendant about what she found on his

computer. Defendant was "defensive" and denied any wrongdoing. 

Later in the day, the argument resumed and grew "ugly,"

culminating with Matticks slapping defendant across the face. At

that point, Matticks had consumed approximately three alcoholic

beverages containing bourbon and Pepsi, but she denied being

drunk. After Matticks slapped defendant, he went to the basement

and started carrying up Matticks's things, telling her "if [she]

didn't like what he did, [she] could get out." However, Matticks
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denied defendant telling her he wanted her out of the house that

night. Matticks eventually called 9-1-1 because defendant

"became very angry," "shoved [Matticks] around a little," and

"tried to tie [her] up with a rope on his kitchen floor." 

When police arrived, one officer asked Matticks why she

slapped defendant. Matticks told him she found lewd images on

defendant's computer and pointed out its location in the spare

bedroom. The police placed defendant and Matticks under arrest

and seated them in separate squad cars. While backing down the

driveway, the officer driving the car carrying Matticks received

instructions via radio to return to the house and confiscate

defendant's computer. The officer asked Matticks for permission

to remove and search the computer. Matticks "told him it was

fine" and signed her written consent, which the State admitted

into evidence as People's exhibit No. 1. 

Matticks spent the night in jail and was released the

following day. Matticks "immediately" went to defendant's house

and found it locked. Since the spare key defendant kept hidden

on the property unlocked only one of the two locks on the house's

only door, Matticks entered through the kitchen window, which she

knew defendant kept unlocked in case he locked himself out of the

house. After leaving defendant's house, Matticks never returned

because she "wasn't welcome to." 

Detective George Harris of the Macon County sheriff's
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department testified he was dispatched along with Deputy Choatie,

a backup deputy, to defendant's residence on October 20, 2008, in

response to a "domestic situation." Detective Harris and Deputy

Choatie arrived simultaneously in separate vehicles. Harris

interviewed defendant in the living room, and Choatie interviewed

Matticks in a bedroom. Defendant told Harris (1) Matticks was

his girlfriend; (2) she had lived in his house for 10 months; and

(3) he wanted her to move out, although defendant did not specify

whether he had already thrown Matticks out of his home. 

Defendant also complained to Harris about Matticks acting

physically violent toward him.

After his interview with defendant, Harris spoke to

Matticks, who told him about allegedly inappropriate images she

saw on defendant's computer. Harris smelled alcohol on Matticks

but stated she did not appear intoxicated. Harris placed both

defendant and Matticks under arrest, and he and Choatie

transported each separately to the police station. As Harris

backed out of defendant's driveway, Harris received instructions

to confiscate defendant's computer. At that point, Harris left

defendant in his squad car and approached the vehicle driven by

Choatie and containing Matticks. Harris asked Choatie "to ask

[Matticks] since she resided at the house [if she] would *** give

permission *** to remove the computer tower." Choatie obtained

Matticks's consent and removed the computer. No one requested
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defendant's permission or informed him Matticks consented to a

search of his property. 

On cross-examination, Harris admitted Matticks told him

defendant informed her to "'get the f--k out'" and tried to throw

her out of the house. Harris further admitted seeing boxes

stacked near the front door. He (1) denied knowing defendant was

in the process of removing the boxes from his home, (2) denied

knowing who owned the home, (3) denied knowing whether Matticks

possessed a key or paid rent, and (4) stated the extent of his

knowledge was Matticks's status as defendant's live-in girlfriend

of 10 months. Harris spoke again with Matticks at the police

station, where she informed him (1) defendant removed the

computer's keyboard, (2) defendant hid the keyboard under the

bed, and (3) she had asked defendant to remove her belongings

from his residence. 

Deputy Todd Choatie, a patrol deputy with the Macon

County sheriff's department, testified he arrived at defendant's

residence on October 20, 2008, in reference to a domestic

complaint. At the residence, defendant greeted Choatie and

Harris and invited them inside. Choatie noticed boxes stacked up

near the front door, and at some point in the evening, defendant

told either Choatie or Harris the boxes belonged to Matticks and

had recently been packed up and taken from the basement. Choatie

understood "[defendant] was asking [Matticks] to leave." 
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Choatie interviewed Matticks while Harris spoke with

defendant. Choatie described Matticks as intoxicated but in

control of her locomotion and attentive in her responses to his

questions. When Matticks informed Choatie she had seen child

pornography on defendant's computer, Choatie relayed the

information to Harris. Based on Matticks's statements, Choatie

believed she and defendant had rights to the computer. Harris,

the senior deputy, decided to place both defendant and Matticks

under arrest for domestic battery. At the instruction of the

police command officer, Choatie obtained Matticks's signed

consent to search. 

Matticks told Choatie the location of the computer and

the keyboard. Choatie removed the computer's tower and took it

to the Macon County sheriff's office rather than leave it at the

residence "[b]ecause of the potential for *** the contents of it

to be destroyed." On cross-examination, Choatie admitted knowing

individuals like defendant arrested for domestic battery had to

go before a judge to have their bail set. 

At the close of evidence, the trial court took the

matter under advisement. On November 12, 2009, the court entered

a memorandum order finding Matticks had neither actual nor

apparent authority to consent to a search of defendant's

residence. As to actual authority, the court reasoned Matticks

did not possess equal rights to the use or occupation of the
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residence under United States v. Matlock, 415 U.S. 164, 39 L. Ed.

2d 242, 94 S. Ct. 988 (1974). In support of its ruling Matticks

did not possess apparent authority over the premises, the court

stated as follows:

"The evidence shows that the [s]heriff's

deputies were in possession of the following

information at the time consent to search was

given: [(]1) there was a complaint of

domestic violence, [(]2) Ms. Matticks had

resided at the location for approximately 10

months, [(]3) defendant stated he wanted Ms.

Matticks to move out, [(]4) Ms. Matticks

stated the defendant had told her to vacate

the residence and tried to throw her out, and

[(]5) boxes were observed to be stacked near

the basement stairwell and/or the front

entrance. Deputy Choatie testified that Ms.

Matticks advised him that both she and the

defendant were allowed to use the computer,

however, this information is not mentioned in

his report. Under Illinois v. Rodriguez, 497

U.S. 177[, 111 L. Ed. 2d 148, 110 S. Ct. 2793

(1990),] the question to be resolved is

whether these facts would warrant a man of
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reasonable caution to believe that Ms.

Matticks had authority over the premises. 

The court finds the State has not met its

burden to demonstrate apparent authority. At

best, the foregoing information would lead a

reasonable person to make further inquiry

regarding the facts and circumstances

relating to ownership and possession of the

residence and its contents before failing to

secure a search warrant and, instead, seeking

consent to search. *** [A]pparent authority

does not allow a police officer to proceed

without inquiry in ambiguous circumstances or

to accept at face value the consenting

party's apparent assumption that she has

authority to consent to a search."

Accordingly, the court held police illegally seized defendant's

computer and thus the exclusionary rule dictates the evidence

recovered from the search of the computer must be suppressed.

This appeal followed. 

II. ANALYSIS 

On appeal, the State argues (1) the trial court erred

in finding Matticks did not possess actual or apparent authority

to consent to the search of defendant's computer, (2) the
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evidence discovered as a result of Matticks's consent to search

was admissible under the inevitable-discovery exception, and (3)

police had probable cause to search defendant's computer

regardless of whether Matticks had authority to consent to a

search. We find Matticks possessed actual authority to consent.

The State maintains the trial court erred in finding

Matticks did not possess actual or apparent authority to consent

to the search of defendant's computer because Matticks had not

yet vacated the residence. 

A reviewing court accords great deference to the trial

court's factual findings and will reverse those findings only if

they are against the manifest weight of the evidence. People v.

Hopkins, 235 Ill. 2d 453, 471, 922 N.E.2d 1042, 1052 (2009). 

However, an appellate court reviews de novo the trial court's

ultimate ruling on a motion to suppress. Hopkins, 235 Ill. 2d at

471, 922 N.E.2d at 1052. 

Generally, police are prohibited from warrantless

searches. U.S. Const., amend. IV; Ill. Const. 1970, art. I, §6. 

However, a warrantless search of property is valid when conducted

after obtaining voluntarily given consent from either the

property owner or a third party possessing common authority over

the premises. People v. Parker, 386 Ill. App. 3d 40, 44, 898

N.E.2d 1047, 1050 (2007). 

The State argues Matticks had actual authority to
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consent to a search of the residence because Matticks had not yet

moved out the residence when she provided police with her signed

consent.

Actual common authority is not dependent on the laws of

property, such as whether a third party has a lease or shares

ownership of the property. People v. Pitman, 211 Ill. 2d 502,

524, 813 N.E.2d 93, 107 (2004). Instead, the Supreme Court has

defined actual authority as "mutual use of the property by [third

parties] generally having joint access or control for most

purposes." Matlock, 415 U.S. at 171 n.7, 39 L. Ed. 2d at 250

n.7, 94 S. Ct. at 993 n.7. "The third party's degree of

authority and control over the residence cannot be substantially

inferior to that degree possessed by the defendant, and the third

party's right to occupy and use the residence must equal or

exceed the defendant's right of occupation." People v. Pickens,

275 Ill. App. 3d 108, 112, 655 N.E.2d 1206, 1209 (1995). Common

authority exists in situations involving family, marital, or

cohabitant relationships. Pickens, 275 Ill. App. 3d at 112, 655

N.E.2d at 1209. 

In the case at bar, the parties do not dispute Matticks

cohabitated with defendant for 10 months prior to October 20,

2008, when Matticks consented to a search of defendant's

computer. Rather, they disagree whether Matticks and defendant

ceased cohabitating during their October 20, 2008, disagreement. 
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The State argues Matticks had actual common authority over the

residence the evening of October 20, 2008, because "at the time

[Matticks] gave her consent, the living arrangements had not

changed." Defendant counters Matticks's actual authority ended

when defendant told Matticks to leave his house that afternoon

and moved the already-packed boxes Matticks stored in the

basement to the front entryway. 

Although defendant argues Matticks and defendant no

longer lived together the moment defendant told Matticks to get

out of his house, Matticks had not yet vacated the residence when

she consented to a search of the property several hours later and

still resided in the dwelling as her exclusive residence. 

Defendant places great emphasis on the fact he moved 8 to 12

boxes containing Matticks's packed belongings from the basement

to the front entryway. However, Matticks never left the house

between the time defendant told her to get out and the police's

arrival that evening nor did she make arrangements for removing

herself or her belongings from the residence. Moreover, neither

Matticks nor defendant testified Matticks packed up her personal

items she used daily--such as her clothing or toiletries--which

would indicate she was in the process of immediately and

permanently vacating the residence. Testimony at the hearing on

defendant's motion to suppress also indicated Matticks gave

defendant $7,200 to put toward his mortgage. Matticks testified
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defendant reimbursed her that amount "when [she] left," "after

[she and defendant] broke up." These facts suggest Matticks

possessed joint access and control of the residence the evening

of October 20, 2008.

In support of his argument Matticks did not have actual

authority, defendant cites Rodriguez, 497 U.S. 177, 111 L. Ed. 2d

148, 110 S. Ct. 2793. In Rodriguez, the defendant's girlfriend

previously lived with him but had moved out a month prior to

giving police consent to search the defendant's residence. 

Despite the fact the girlfriend had left furniture and household

items at the defendant's home and occasionally spent the night at

the residence after moving out, the Supreme Court held the

girlfriend lacked actual authority. Rodriguez, 497 U.S. at 181-

82, 111 L. Ed. 2d at 157, 110 S. Ct. at 2797-98. The Court

reasoned the girlfriend did not have joint access to or control

of the premises, citing the fact she did not visit the residence

when the defendant was not present, contribute rent, or invite

her friends over. Rodriguez, 497 U.S. at 181, 111 L. Ed. 2d at

157, 110 S. Ct. at 2798. Unlike the scenario in Rodriguez,

Matticks had not yet vacated the residence. Contrary to

defendant's assertion he "moved all of Matticks'[s] belongings to

the front doorway," testimony from defendant and Matticks

establishes the boxes contained items Matticks did not use on a

daily basis and her clothing, toiletries, and other necessities
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remained unpacked in other areas of the home. 

Defendant further argues Matticks lacked actual

authority because she did not have a key to the residence. 

However, possession of a key is not automatically indicative of

mutual use or joint access of property for purposes of actual

common authority. See People v. Keith M., 255 Ill. App. 3d 1071,

1083-84, 625 N.E.2d 980, 988 (1993) (housekeeper did not have

common authority over residence simply because she possessed a

key); People v. Posey, 99 Ill. App. 3d 943, 950, 426 N.E.2d 209,

214 (1981) (girlfriend living with the defendant in a motel room

had actual common authority over the room despite not possessing

a key). Both defendant and Matticks testified Matticks never

needed a key in the 10 months she resided with defendant because

(1) she drove defendant's truck, which contained a garage-door

opener; (2) a spare key was located on the property in case

either defendant or Matticks became locked out of the house; and

(3) the kitchen window was also left unlocked in case of a

lockout. 

Additionally, defendant contends even if Matticks had

actual common authority over the premises, she did not have

authority over the computer because defendant told Matticks not

to use it and rendered it inoperable by removing its keyboard

earlier in the week. In response, the State cites Posey, 99 Ill.

App. 3d 943, 426 N.E.2d 209. In Posey, the Second District
- 20 -

reversed the trial court's grant of a motion to suppress evidence

recovered in a suitcase in the defendant's motel room. Posey, 99

Ill. App. 3d at 950, 426 N.E.2d at 214. The Second District

reasoned despite the defendant telling his girlfriend she was not

allowed to open his bag and not giving the girlfriend a key to

the motel room, other evidence supported apparent authority--

namely, the defendant's girlfriend lived with him in the motel

room, had no other residence in the area, and was given complete

access to all areas of that room. Posey, 99 Ill. App. 3d at 949-

50, 426 N.E.2d at 214. 

In this case, testimony at the hearing on defendant's

motion to suppress conflicted as to whether Matticks knew

defendant had removed the keyboard from the computer and told her

she was no longer allowed to use it. However, even assuming

Matticks knew defendant no longer wanted her to use the computer,

Matticks, like the defendant's girlfriend in Posey, had

unrestricted access to the entire residence. As such, this

access included the office containing the computer, which still

had a Post-It containing its passwords attached and was otherwise

operable despite lacking a keyboard.

The above establishes, assuming arguendo defendant told

Matticks to leave the afternoon of October 20, 2008, she had not

yet vacated the residence several hours later when she consented

to a search of the computer contained therein and thus retained
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actual authority over the premises.

Here, Matticks had actual authority before defendant

told her to leave. That authority continued to exist during the

transitional phase of moving out. Defendant's words alone, in

these factual circumstances, were not sufficient to rescind her

authority. Up to that point, Matticks possessed "joint access or

control for most purposes" (Matlock, 415 U.S. at 171 n.7, 39 L.

Ed. 2d at 250 n.7, 94 S. Ct. at 993 n.7), and while the process

of her moving out was ongoing, her actual authority continued. 

Accordingly, the trial court erred in granting

defendant's motion to suppress evidence, and we reverse and

remand for further proceedings. Because we find Matticks

possessed actual authority over the residence, we need not

address the State's arguments pertaining to apparent authority,

the inevitable-discovery exception, and probable cause.

III. CONCLUSION

For the forgoing reasons, we reverse the trial court's

judgment and remand for further proceedings.

Reversed and remanded.

MYERSCOUGH, P.J., and STEIGMANN, J., concur.