SECONDDIVISI ON October 9, 2007

No. 1-06-1637
THE PEOPLE OF T HE STATE OF I LLINOI S, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 06 CR 7603 ) JAMES P

ARKER, ) The Hon ora ble ) John J. Flem ing, Defendant-Appellee. ) Judge Presiding.

JUSTICE KARNE ZIS delivered the opinion of the court: The State appeal s pursuant to Supreme Court Rule 604(a)(1) (210 Ill . 2d R. 604(a)(1)) from acircuit court order granting defendant Jam es Parker's m otion to suppress physi cal evid ence obtain ed when police en tered and sear ched his house without a w

arrant, but w ith the consent of his live-in girlfri end, Diana Grisham . On appeal, the State contend s that police had valid consent to search the premises becaus e Gr isha m sign ed acon sen t-to-s ear ch f orm , de fen dan t was n ot p hys icall y present whe n she gave that co nsent, and he did not ex pressly object to the search. For the reasons stated below , we reve rse the trial court's ruling on defendant's m otion and remand this case for fur ther proceedi ngs. Defendant was charged w ith possession of a controlled substance and possession of a controlled substance with intent to deliver. He subsequently filed a1-06-1637

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motion to quash his ar rest and suppre ss evidence i n which he clai med that he was a passenger in a vehicle that was stopped by police for the sole purpose of conducting a narcotics investigation. Defendant argued that t he officers did not have a valid reason to stop the vehi cle, and that the search and sei zure were unlawful beca use poli ce lacked a search or arrest w arrant, no exigent circum stances ex isted, the search w as not inci dent to or contemporaneous with a val id arrest , and consent was given as a submission to a show of authori ty. Defendant furthe r argued that be cause the search and seizure were illegal, the alleged il legal substance recovered fromhis person and any statem ents he m ade to police should be excluded fromevidence. At a he arin g on his m otio n, d efe nda nt test ified , co ntr ary to t he f acts in his
m otio n, t hat

abo ut 1 2:1 0 a. m . on Feb rua ry 2 6, 2 006 , hew as s leep ing in his bed w ith h is 11- m ont h-o ld da ugh ter w hen he aw okeand saw thr ee o r fo ur p oliceoff

icer s in his bedroom pointing their guns at him and his baby. One of the officers held a piece of paper in front of his face and ex plained to him that it was a consent form that Grisham had signed giving them perm ission to search the house. D efendant denied that he consented to the sear ch and said tha t the poli ce did not show him a search or arr est warrant. D efendant testified that police brought him to his front room , then searched his house and found crack cocaine. Defendant furth er testifi ed that he and Gri sham had lived togeth er in the ho use for two years, and that they shar ed the bedroom and dresser dr awer from w hich pol ice
recove red dru gs a nd m one y. Def end ant ack now ledg ed t hat

w hile h e was s leep ing in the bedr oom , he w

as only afew

feet aw ay from the dres ser.1-06-1637

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After the defense rested, the State announced that it w as going to call Chicago police officer Smith to tes tify, at which tim e the trial court intervened stating "[m ]aybe I can cut this short." P ursuant to the court's qu estioning, the State acknow ledged that the officer would testify t hat defendant w as sleeping and that only Grisham consented, but asserted that thetestimon y would also show that defendant never obj ected to the search, and that S upreme Court case law supported the Sta te's argum ent. The trial court ruled that it was granting defendant's m otion based on Suprem e Court case law holding that

one pers on cann ot cons ent for another. The cou rt found that to require
som eone who is sleeping to obj ect to another's conse nt goes against the spirit of the Suprem e Court's ruling. It further stated that one person cannot cons ent to a search of a hom e when anot her person is inside, and found that w here defendant was sleeping, he did not have an opportunity to cons ent or objec t to the search. The Sta te argue d that d efendan t had an opportu nity to o bje ct w hen the officers woke him , to which thecourt replied that its ruling could be appealed and suggested that it m ight "get som e direction from the Appellate Court." The court further foun d that defendant did not have to ass ert an objec tion, that his consent had to be shown, a nd that the United State s Suprem e Court had held that one person cannot consent ove r another' s obj ection. The trial cou rt stated that the "st ipulated fac

ts" in thiscase w

ere that defendant's live-in girlfri end signed a consent form , that defendant w as sleeping when she gave her consent, tha t he did not consent to th e search, and that he did not object to the search because he was slee ping. The court then rul ed that the pol ice could not rely on Grisham's consent to search aroom where defendant was located1-06-1637

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without his perm ission. The Sta te asked if defe nse cou nsel would stipulateto the police office r's testimony , including that defendant was found asleep, he was woken and taken to the living room, and at no tim e did he object or say that he w as not consenting to the search of the shared bed room. The court responded that it had already stated the findings of fact and that there w as a stipulation, to which defense counsel replied "[t]hat's correct." The S tate clarified that the stipulation included that defendant had
nev er o bj ected a fte r be ing w oke n, a nd coun sel r

eplie d "[ r]ig ht. The y were alre ady in thehou se when he w

as w oke n up ." T he t rial cour t ag ain s tated t hat

def end ant cou ld not objec

t because the officers w ere already inside the house conducting the search, and granted defendant's m otion to quash his arrest and suppressthe evidence. On appeal, the State co ntends that the trial court erred w hen it granted defendant's m otion because the police had secured a valid consent to search the premises when Grisham, who lived in the hom e with defendant, voluntarily signed a consent-to-search form . The State ass erts that the trial court m isinterpreted the United States Sup reme C ourt's holding in Georgia v. Randolph , 547 U.S. 10 3, 164 L. Ed. 2d 208, 126 S. Ct . 1515 (2006), and that the instant case is factually distinct from Randolph because here, defendant was not physically present when Grishamgave her consent to search, and defendant never voiced an obj ection to the search. The S tate requests this court to revers e the trial court's ruling on defendant's mo tion and to
rem and thecas e fo r tr ial. Defendant contends that the search w as unreasonable because he w as awoken1-06-1637

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and seized at gunpoint by police, informed that they had cons ent to search, then
removed from the room , depriving him of an opportunity to object to the search. The State repli es that it i s uncontested that Gr isham gave poli ce a vali d consent to search the house, and that defendant's argum ent is against Suprem e Court precedent set by Illinoi s v. Rodriguez , 497 U.S. 17 7, 111 L. Ed. 2d 148, 110 S. Ct . 2793 (1990), and United States v. Matlo ck , 415 U .S. 1 64, 39 L . Ed. 2d 242, 94 S. Ct. 98 8 (1974). Our review of the trial court's ruling on defendant's motion to quash and suppress presents ques tions of both fact and law

. People v. McC arty , 223 Ill. 2d 109, 148 (2006). T he court's factua l find ings will not be distur bed unless th ey are agai nst the m anifest weight of the evidence, while the court's ruling on the m otion is a question of la w whi ch we r ev ie w de novo

. McCarty , 223 Ill. 2d at 148. The fourth am endme nt of the United States Constitution, w hich applies to the sta testhr

oug h th e fo urt een th a m end m ent , pr ote ctsall c itiz ensfro m unr eas ona ble searches and sei zures in thei r homes. U.S. Const., am end. IV. General ly, pol ice must obtain a search warrant supported by probable cause bef ore they can search a person's hom e ( People v. Lam pitok , 207 Ill. 2d 231, 243 (2003)), and searches conducted w ithout such a warrant are presum ptively unreasonable ( Randolph , 547 U.S. at 109, 164 L. E d. 2d at 218, 12 6 S. C t. at 1 520). A n exception to this rule e xists whe re po l i ce ob ta i n v ol un ta ry co ns en t t o s ea rc h t he ho me f ro m ei th er th e d ef en da nt , o r f ro m a third party who pos sesses com mon authority over the prem ises. Matlock , 415 U.S. at 171, 39 L. Ed. 2d at 249-50, 94 S. Ct. at 993. The Suprem e Court has held that w hen one person w ho has com mon authority1-06-1637

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over the prem ises consents to a s earch, his consent is valid against an absent, nonconsenting person w ho shares that authority. Matlock , 415 U.S. at 170, 39 L. Ed. 2d at 249, 94 S. Ct. at 993. However, al though a co-tena nt gives hi s consent, a search will be found unreasonable as to a defendant who w as physically present at the scene and express ly stated his refusal to allow police to enter and search t he prem ises. Randolph , 547 U.S. at

106, 164 L. Ed. 2d at 217, 126 S. Ct. at 1518-19. In Matlock , the defendant was arreste d in hi s front yard and pl aced in a pol ice car, after w hich his live-i n girlfriend gave poli ce her consent to s earch the bedroomthey shared, in which evidence w as recovered. Matlock , 415 U.S. at 166, 39 L. Ed. 2d at 247, 94 S. Ct . at 991. The Suprem e Court found that th e co-tenant's voluntary consent to the search m ade it reasonable as to the defendant, who w as not present to obj ect to the search, although he w as in a nearby squad car. Matlock , 415 U.S. at 177, 39 L. Ed. 2d at 253, 94 S. Ct. at 996. In Rodriguez , the defendant w as asleep in the bedroom when his apparent livein girlfri end gave police her consent to enter t he apartm ent to arrest him for assaulting her , at w hich tim e po lice recove red dru gs a nd r elated p ara phe rna lia th at w as in plain view. Rodriguez , 497 U.S. at 179-80, 111 L. Ed. 2d at 155-56, 110 S. Ct. at 2796-97. The Court found that if the police reasonably believed that the w oman had the authority to consent, then t heir entry into the apartm ent was reasonable. Rodriguez , 497 U.S. at 189, 111 L. Ed. 2 d at 161, 110 S. Ct. at 2801. Reflecting on its prior decisions in Matlock and Rodriguez , the Randolph court acknowledged:1-06-1637

-7- "we are draw ing a fine line; if a potential defendant w ith selfinterest in objecting is in fact at the door and object s , the co-tenant's permission does not

suffice for a reasonable search, w hereas the potential objector, nearby b ut not invited to take part in the threshold colloq uy , loses o ut." (E m phasis ad ded.) Randolph , 547 U.S. at 121, 164 L. Ed. 2d at 226, 126 S. Ct. at 1527. Her e, w e fin d th at t he w

arrant lesssea rch of d efe nda nt' s ho m e was r eas ona ble and did not

violate his f

ourth am endm ent rightswhe re police had secure d a voluntary consent to search t he prem ises from the co-tenant in defendant's absen ce. Sim ilar to the defendant in Rodriguez , defendant in this case w as sleeping in the bedroom w hen Gr i sh am, hi s l i ve -i n g i rl fr i en d, ga ve po l i ce he r c on se nt to en te r a nd se ar ch th e h ome that they shared. A lthough defendant wa s present nearby, he w as not present at the threshold colloquy where Grishamgave her voluntary consent. Due to his absence at tha t po int, def

end ant cou ld no t ob

j ect w hen police en ter

ed h is ho m e an d be gan the ir search. Following the reasoning of the Randolph cou rt, def end ant "los t ou t" o n his opportunity to do so. We further note that the record contains no ev idence that defendant ever ex pressly voiced an obj ection to the search, even after being
co nf ro nt ed by po l i ce i n t he be dr oo m. In a ddit ion, w e re

j ect def end ant 's a rgu m ent

tha t th e se arc h was u nre aso nab le because he w

as deprived of his opportunity to obj ect. In order for defendan t to override Grisham's cons ent, it was ne cessary for him to be present "at the door" and
ex pre ssl y ob

j ect to t he s earch when police en ter ed h is ho m e. T her

e is no e vide ncein1-06-1637

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therecord tha t th e po lice rem ove d him fro m the"en tra nce " toavo id his pos sible objection. Randolph , 547 U.S. at 121, 164 L. Ed. 2d at 227, 126 S. Ct. at 1527. Moreover, the S upreme Court explicitly rejected the notion that the police should be required "to find a potentially objecting co-tenant before acting on th e perm ission they ha[ve] already received," as doing so w ould turn every co-tenant conse nt case into an
exam ination of the adequacy of the efforts of police to consult with a potential objector. Randolph , 547 U.S. at 122, 164 L. Ed. 2d at 227 , 126 S. Ct. at 1527-28. Accordi ngly,
w e fin d th at d efe nda nt' s m otio n toqua sh h is ar res t an d su ppr esstheevid enc e sh ould have been denied. For these reasons, w

e reverse the ruling of the circuit court of Cook C ounty and remand this case for furth er proceedi ngs. Reversed and rem anded. THEIS and C UNNINGHA M, J.J., concur.