Illinois Official Reports 

Appellate Court

People v. Franklin, 2016 IL App (1st) 140059

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

MARLON FRANKLIN, Defendant-Appellant.

District & No. First District, Third Division

Docket No. 1-14-0059

Filed August 24, 2016

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 11-C6-60259; the 

Hon. Luciano Panici, Judge, presiding.

Judgment Reversed.

Counsel on

Appeal

Michael J. Pelletier, Alan D. Goldberg, Patricia Mysza, Cassidey 

Davis Keilman, and Carolyn R. Klarquist, all of State Appellate 

Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, 

Mary P. Needham, and Haley Peck, Assistant State’s Attorneys, of 

counsel), for the People.

Panel JUSTICE MASON delivered the judgment of the court, with opinion.

Justices Fitzgerald Smith and Lavin concurred in the judgment and 

opinion.
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 OPINION 

¶ 1 Defendant Marlon Franklin was charged with eight counts of aggravated unlawful use of a 

weapon (AUUW) and six counts of unlawful use of a weapon by a felon (UUWF). The jury 

convicted Franklin of two counts of UUWF, and the trial court later sentenced him to two 

concurrent six-year terms of imprisonment. He appeals, challenging the sufficiency of the 

evidence to demonstrate his possession of the firearms and the trial court’s denial of his motion 

to suppress evidence. Because we find that the motion to suppress should have been granted, 

we reverse. 

¶ 2 On March 5, 2011, East Hazel Crest police received a call regarding a theft of cash from 

room 106 of the Super 8 Motel located at 17220 South Halsted Street. Officer Kenneth Vallow 

and his partner, Officer Hankins, went to room 106 and met Jasmine Ross, the victim of the 

theft. Ross described the perpetrator as a 26-year-old, 6-foot-3-inch, 300-pound black male 

going by the nickname “DB.” Ross told the officers they could find “DB” in room 301 and that 

“DB” was “known to be armed.” As the officers approached room 301, they encountered 

Franklin leaving the room. After the officers identified themselves, Franklin told the officers 

that room 301 was rented in his name. When asked if he was known as “DB,” Franklin told the 

officers that DB was in his room. 

¶ 3 Franklin used his keycard to let the officers into the room. Vallow used a towel to prop 

open the door. Once inside, the officers observed a large man matching Ross’s description 

sleeping on one of the two beds. The man woke up and the officers began questioning him. 

Meanwhile Franklin remained standing by the window. On the nightstand between the two 

beds, Vallow observed a clear plastic bag containing a green, leafy substance, which appeared 

to be cannabis, and handed the bag to Hankins.1

 Vallow did a quick search of the room and the 

bathroom and noticed nothing was out of place in the bathroom. In particular, Vallow looked at 

the ceiling tiles in the bathroom, as experience told him that contraband or weapons were often 

concealed there. The ceiling tiles appeared undisturbed. 

¶ 4 Hankins radioed for a drug sniffing dog. Vallow observed that DB (later identified as 

David Lathan) was becoming “very nervous” and “tense” and that Franklin also became 

fidgety. DB then jumped over the bed, pushed past the officers, and ran out of the open door of 

the room. DB ran down the stairs and proceeded to carjack a vehicle from two individuals who 

were leaving the parking lot. Hankins and Vallow both gave chase, leaving Franklin alone in 

the room. 

¶ 5 A few minutes later, Vallow realized that Franklin was still in the room and returned to 

room 301. Vallow walked through the still propped open door to see Franklin exiting the 

bathroom with a “surprised” expression on his face. Franklin did not tell Vallow he was not 

permitted to enter the room or ask him to leave. Upon examining the bathroom, Vallow 

observed that the ceiling tiles had been pushed up two inches. Vallow handcuffed Franklin, 

had him sit on the bed, and inspected the ceiling tiles in the bathroom. Standing on the toilet, 

Vallow reached up and felt two plastic bags that he believed contained guns. At that point 

Vallow did not pull the bags down. Vallow brought Franklin down to his squad car, secured 

him in the backseat, and went back to the room, recovering from above the bathroom ceiling 

 

1The record is unclear as to what Hankins did with the suspected narcotics. For purposes of this 

opinion, we will assume she took custody of the bag. 
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two plastic bags containing a Lorcin .38-caliber automatic weapon, an extra ammunition clip 

for that weapon, a Hi-Point 9-millimeter firearm with a full clip, and $153 in cash. The cash 

was returned to Ross and the guns were inventoried. Vallow never observed Franklin in the 

bathroom or reaching up to the ceiling tiles. 

¶ 6 Based on this evidence, the trial court denied Franklin’s motion to quash arrest and 

suppress evidence. The court ruled that the presence of suspect narcotics in plain view was 

probable cause for Franklin’s arrest and that Vallow had probable cause to search the ceiling 

tiles because of their notable change in the three-minute period during which Vallow left the 

room. 

¶ 7 The matter proceeded to trial and the parties stipulated to Franklin’s status as a felon. 

Vallow’s testimony was consistent with his prior testimony on the motion to suppress.

¶ 8 Franklin’s motion for a directed verdict was denied, and the defense rested without calling 

any witnesses or introducing any other evidence. The jury found Franklin guilty on both counts 

of UUWF. 

¶ 9 Franklin’s motion for a new trial and his motion to reconsider the ruling on his motion to 

quash and suppress were denied. The court sentenced Franklin to six years’ incarceration. 

¶ 10 ANALYSIS 

¶ 11 Franklin raises a number of issues relating to the sufficiency of the State’s evidence, the 

trial court’s response to a question from the jury and the claimed ineffective assistance of trial 

counsel. But because it is dispositive, we need only address Franklin’s contention that the trial 

court erred in denying his motion to suppress evidence. On this issue, Franklin first contends 

that Vallow was not justified in reentering the room after he left to pursue Lathan so that 

Vallow’s “second entry” into the room was without Franklin’s consent and not justified by any 

other exception to the warrant requirement. Franklin further contends that even if Vallow’s 

reentry is deemed consensual, his search of the area above the bathroom ceiling tiles could not 

be justified as a search incident to Franklin’s arrest or by exigent circumstances. The trial court 

rejected these contentions, finding that Franklin’s original consent encompassed Vallow’s 

return to the room and that Vallow had probable cause to arrest Franklin based on the plainly 

visible bag of cannabis in between the two beds. Further, once Vallow observed that the 

bathroom ceiling tiles had been disturbed during his brief absence, the court found he had 

probable cause to search the area above those tiles. 

¶ 12 We apply a bifurcated standard of review when reviewing a trial court’s decision denying a 

defendant’s motion to quash arrest and suppress evidence. People v. Luedemann, 222 Ill. 2d 

530, 542 (2006). In reviewing questions of fact, we defer to the trial court’s factual findings 

and reverse them only if they are contrary to the manifest weight of evidence. Id. The question 

of whether, based on the facts as found by the trial court, suppression is warranted is a legal 

question we review de novo. Id.

¶ 13 The fourth amendment of the United States Constitution protects the rights of people “to be 

secure in their persons, houses, papers, and effects, against unreasonable search and seizures.” 

U.S. Const., amend. IV. The Illinois Constitution offers similar protection. Ill. Const. 1970, art. 

1, § 6. A warrantless search is per se unconstitutional unless it falls within recognized 

exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 357 (1967). In 

Illinois the exceptions are (1) probable cause accompanied by exigent circumstances, (2) a 
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search incident to arrest, and (3) a search based on consent. People v. Harrell, 226 Ill. App. 3d 

866, 872 (1992). “Consent is not valid unless it is voluntary, and in order for consent to be 

voluntary, it must be freely given without duress or coercion (express or implied).” People v. 

LaPoint, 353 Ill. App. 3d 328, 332 (2004). Generally, whether consent has been freely given is 

a factual question that the reviewing court will accept unless it is clearly unreasonable. People 

v. Turnipseed, 274 Ill. App. 3d 527, 530 (1995). 

¶ 14 We find that Vallow’s reentry into Franklin’s motel room was consensual. There is no 

dispute that Franklin consented to Vallow’s initial entry into his room. Franklin contends,

however, that once the officers accomplished their stated purpose for entering the room, i.e., to 

find “DB,” their departure to pursue Lathan required Vallow to seek and obtain Franklin’s 

consent before reentering the room. And because (i) there is no evidence that Franklin 

consented to what he characterizes as the second entry and (ii) no other exception to the 

warrant requirement exists, his motion to suppress the recovered weapons should have been 

granted. 

¶ 15 We disagree with the premise of Franklin’s argument that there were two entries into his 

room: one consensual and one without consent. On the facts presented here, we find that there 

was one consensual search and that the interruption of the search as a result of Lathan’s flight 

did not render Vallow’s reentry nonconsensual. 

¶ 16 An analogous situation was presented in People v. Logsdon, 208 Ill. App. 3d 989 (1991). In 

Logsdon, the defendant, who was hospitalized, asked the police to search her home because 

she was concerned that her ex-husband, who had been harassing her, was planning to break-in. 

Id. at 991. In response to defendant’s request, a police officer went to her home and found pry 

marks on the kitchen door and chipped wood next to the lock. Id. The door was also unlocked. 

Id. Upon entry, the officer searched each room and ultimately came upon a cubbyhole 

containing a clear plastic bag of what appeared to be cannabis. Id. The officer left the narcotics 

where they were, completed his search for intruders and returned to his squad car to call for 

backup to secure the residence while he went to obtain a warrant. Id. Backup arrived about 50 

minutes later and the officer then contacted an assistant State’s Attorney who advised him to 

reenter the premises and seize the drugs without a warrant, which he proceeded to do. Id. 

¶ 17 The trial court granted defendant’s motion to suppress, finding that although the officer’s 

initial entry was with the homeowner’s consent, he exceeded the scope of that consent when he 

reentered the home. Id. at 992. Reversing the trial court, the Logsdon court rejected the notion 

that there were two separate searches of defendant’s home: “[W]e are not faced with two 

searches, but rather with one continuous search. A brief interruption or a temporary suspension 

of a search does not transform one continuous search into two separate searches. [Citations.].” 

Id. The court further observed: 

“The record reveals [the officer] never abandoned his investigation, relinquished 

control over the defendant’s house, or indicated an intent not to seize the marijuana. He 

only briefly interrupted his search to call for backup and to reach the assistant State’s 

Attorney.” Id. at 992-93. 

¶ 18 Here, Vallow entered Franklin’s room for a nondrug-related purpose and, during the 

course of his consensual search, observed suspect narcotics in plain view. At that point, Vallow 

had probable cause to arrest Franklin for possession of those narcotics as Franklin had 

previously informed Vallow that the room was rented in his name. And Franklin would have 

been arrested had Lathan not unexpectedly fled the room. The officers did not leave the room 
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because they had completed their search and ran out only to pursue a fleeing suspect. When 

Vallow returned minutes later, the door was still propped open and Franklin, upon seeing 

Vallow, did not register any objection to Vallow’s return or ask him to leave. Under these 

circumstances, we find that there was one continuous consensual search and that Vallow could 

properly reenter the room to effect Franklin’s arrest. 

¶ 19 The authorities Franklin cites on the issue of consent to multiple searches by police are 

distinguishable on their facts. See People v. Plante, 371 Ill. App. 3d 264, 268-69 (2007) 

(holding there was no consent where the police officer had made three entries into the 

defendant’s home, each time through a closed door, defendant voiced an objection to the third 

entry, and the officer made a physical gesture for the defendant to move aside); People v. 

Jackson, 57 Ill. App. 3d 720, 723 (1978) (holding there was no consent for police officers’ 

second entry into room where door to room was locked in between first and second searches).

Under the circumstances here, where (i) the officers’ entry into the room was indisputably 

consensual; (ii) the officers had recovered narcotics in plain view giving them probable cause 

to arrest, at a minimum, the person in whose name the room was rented; (iii) the officers’ 

departure from the room was occasioned not by completion of the search but by the need to 

pursue a fleeing suspect; (iv) the door to the room remained open when one officer returned 

minutes later; and (v) the room’s occupant expressed no objection to the officer’s reentry, we 

find that Vallow’s reentry to the room was authorized by consent.

¶ 20 Franklin also contends that even if Vallow could properly reenter the motel room pursuant 

to his original consent, Vallow’s warrantless search of other areas of the room and, in 

particular, the area above the bathroom ceiling, was not justified. Specifically, Franklin 

contends that Vallow’s search of the bathroom ceiling, which exceeded the scope of Franklin’s 

consent to enter the room to find “DB,” was not otherwise justified either as a search incident 

to Franklin’s arrest or by exigent circumstances. On this point, we agree with Franklin.

¶ 21 Franklin’s consent to Vallow and Hankins’ entry into his motel room was predicated on the 

officers’ stated purpose to locate Lathan, a suspect in a theft. Once inside, the narcotics in plain 

view gave rise to probable cause to arrest Franklin, in addition to Lathan. But, absent other 

circumstances, the probable cause to arrest Franklin did not translate into the ability to conduct 

a warrantless search of the entire room, including the bathroom. Thus, in order to justify 

Vallow’s search of the area above the bathroom ceiling tiles, it was incumbent on the State, 

once Franklin demonstrated that the weapons were recovered in a warrantless search, to 

demonstrate that the search was properly incident to Franklin’s arrest or that exigent 

circumstances existed. See People v. Kowalski, 2011 IL App (2d) 100237, ¶ 9 (in motion to 

suppress, defendant bears initial burden to show search was conducted without a warrant, then 

burden shifts to State to present evidence of exception to warrant requirement). 

¶ 22 We first consider whether Vallow’s search above the bathroom ceiling tiles was properly 

incident to Franklin’s arrest. Chimel v. California, 395 U.S. 752 (1969), addresses the 

parameters of a warrantless search incident to a lawful arrest. In Chimel, officers arrived at 

defendant’s home with a warrant authorizing his arrest for the burglary of a coin shop. 

Defendant was not home when the officers arrived, and his wife admitted them to the home. 

After defendant returned from work, the officers served him with the arrest warrant and asked 

permission to “look around.” Although defendant objected, the officers informed him that 

based on his lawful arrest, they would search over his objection. Items recovered in the search 

were later admitted into evidence against defendant. Id. at 753-54. 
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¶ 23 After reviewing the fluid history of the law justifying a search incident to an arrest, the 

Supreme Court articulated the proper scope of such a warrantless search: 

“When an arrest is made, it is reasonable for the arresting officer to search the person 

arrested in order to remove any weapons that the latter might seek to use in order to 

resist arrest or effect his escape. Otherwise, the officer’s safety might well be 

endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the 

arresting officer to search for and seize any evidence on the arrestee’s person in order to 

prevent its concealment or destruction. And the area into which an arrestee might reach 

in order to grab a weapon or evidentiary items must, of course, be governed by a like 

rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous 

to the arresting officer as one concealed in the clothing of the person arrested. *** 

 There is no comparable justification, however, for routinely searching any room 

other than that in which an arrest occurs—or, for that matter, for searching through all 

the desk drawers or other closed or concealed areas in that room itself. Such searches, 

in the absence of well-recognized exceptions, may be made only under the authority of 

a search warrant.” Id. at 762-63.

Ultimately, the Court concluded that “[t]he only reasoned distinction is one between a search 

of the person arrested and the area within his reach on the one hand, and more extensive 

searches on the other.” Id. at 766. Chimel thus determined that the search of defendant’s home 

violated the fourth amendment and that his motion to suppress evidence recovered during that 

search should have been granted.

¶ 24 Following Chimel, Illinois courts have likewise addressed the permissible scope of a 

warrantless search incident to an arrest. Thus, our supreme court has concluded that a search 

under a bed occupied by the arrestee was proper as the area was under the arrestee’s immediate 

control (People v. Doss, 44 Ill. 2d 541, 547-48 (1970)), and this court determined that 

searching a pile of clothes within an arrestee’s reach and the drawer of a desk located next to 

the bed where the defendant was arrested was likewise proper. People v. Olson, 198 Ill. App. 

3d 675, 684 (1990). The fact that an arrestee is already handcuffed does not necessarily 

circumscribe a police officer’s ability to search the area within the arrestee’s immediate control 

incident to an arrest. People v. Hoskins, 101 Ill. 2d 209, 213, 216-17 (1984) (finding search of 

handcuffed defendant’s purse proper as incident to arrest); People v. Perry, 47 Ill. 2d 402, 405, 

407-08 (1971) (search of half-open drawer into which defendant had reached prior to being 

handcuffed was valid search incident to arrest). 

¶ 25 Applying these principles to this case, it is apparent that Vallow’s search of the area above 

the bathroom ceiling tiles (both after Franklin was handcuffed and sitting on the bed and later 

when he was secured in Vallow’s squad) was not within the permissible scope of a search 

incident to Franklin’s arrest. The bathroom area was separate from the room where Franklin 

was arrested, and it was not within his immediate reach. The evidence shows that Vallow had 

to stand on the toilet seat to access the area. When Vallow reentered the motel room and 

observed Franklin emerging from the bathroom, nothing prevented him from visually 

examining the bathroom and determining that the ceiling tiles had been disturbed. And while 

the trial court properly concluded that the changed condition of the ceiling tiles gave Vallow 

probable cause to believe Franklin had either recently concealed contraband in or retrieved 

contraband from that location, probable cause, standing alone, did not justify the warrantless 

search. Payton v. New York, 445 U.S. 573, 587-88 (1980); see also People v. Hassan, 253 Ill. 
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App. 3d 558, 567 (1993) (“[N]o amount of probable cause can justify a warrantless search or 

seizure absent exigent circumstances.” (Internal quotation marks omitted.)). 

¶ 26 The State contends that even if the search above the ceiling tiles was not justified as 

incident to Franklin’s arrest, exigent circumstances supported the search. Courts have 

authorized warrantless entries when there is compelling need for prompt action by police and 

time does not permit the police to obtain a warrant. People v. Free, 94 Ill. 2d 378, 395 (1983). 

In People v. Williams, 161 Ill. 2d 1, 26 (1994), our supreme court articulated a number of 

factors relevant to the determination of whether exigent circumstances exist, which include 

whether “(1) the crime under investigation was recently committed; (2) there was any 

deliberate or unjustified delay by the police during which time a warrant could have been 

obtained; (3) a grave offense was involved, particularly a crime of violence; (4) there was 

reasonable belief that the suspect was armed; (5) the police officers were acting on a clear 

showing of probable cause; (6) there was a likelihood that the suspect would escape if *** not 

swiftly apprehended; (7) there was strong reason to believe the suspect was in the premises; 

and (8) the police entry was made peaceably, albeit nonconsensually.”

¶ 27 Because Vallow’s entry into the motel room was with Franklin’s consent, the only question 

is whether Vallow’s search of the area above the bathroom ceiling tiles was justified by this 

exception. 

¶ 28 In its argument, the State conflates the circumstances existing as of Vallow’s first entry 

into the motel room, i.e., pursuit of a suspect in a recent theft who, according to the victim, was 

“known to be armed,” with the circumstances that existed after Vallow returned to the room. 

Thus, the State argues that the officers reasonably believed Lathan had recently stolen money 

from another patron of the motel, was likely armed, behaved erratically when confronted, and 

ultimately fled after carjacking a vehicle in the parking lot. But by the time Vallow returned to 

the room, albeit only a few minutes later, only Franklin was present and although Vallow saw 

Franklin as he emerged from the bathroom, he did not observe him reaching up into the ceiling 

tiles and, following Franklin’s arrest, the area above the ceiling tiles, as noted above, was not 

within Franklin’s immediate reach.

¶ 29 If we hypothesize a scenario where Lathan did not flee the room, the analysis becomes 

even more clear. If Lathan had not fled, the officers would have been justified in searching 

both Lathan and Franklin and the area within their immediate reach. This would not have 

included the bathroom or the area above the ceiling tiles, particularly since, as Vallow testified, 

the ceiling tiles were in place. Such a search incident to arrest may have resulted in the 

recovery of the weapons we assume Franklin later attempted to conceal above the bathroom 

ceiling, but it would not have exceeded the search’s permissible scope.

¶ 30 We do not question that Vallow’s 41 years’ experience as a police officer led him to 

believe (correctly, as it turns out) that contraband was concealed above the recently disturbed 

ceiling tiles. But that is just probable cause and because Franklin was already in custody and 

handcuffed (indeed, he was outside the room locked in Vallow’s squad), no exigent 

circumstances justified the search of the ceiling area without a warrant. 

¶ 31 CONCLUSION 

¶ 32 The weapons recovered from above the bathroom ceiling in Franklin’s motel room were 

the only evidence supporting his UUWF convictions. Given our conclusion that Franklin’s 

motion to suppress that evidence should have been granted, we reverse outright the judgment 
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of the circuit court of Cook County. 

¶ 33 Reversed.