Chapter 1: The Border of Criminal Procedure: Daily Interactions Between Police and Citizens

600 N.E.2d 916 (Ill. App. Ct. 1992)

GREEN, J.

Defendant Daniel W. Carlile was charged with unlawful possession of a controlled substance and unlawful possession of cannabis. [The trial court ruled that the evidence against Carlile was gathered in an improper manner, and suppressed the evidence.] We hold that certain items suppressed were properly received....

At the suppression hearing, upon being called by defendant, Pontiac police officer Mike Gray testified as follows: (1) on September 8, 1991, he and Officer Bristow were dispatched to defendant's residence on a domestic dispute; (2) when they arrived on the scene they spoke briefly to defendant in the street near the house; defendant indicated he wanted the officers to remove his former girlfriend, Arcelia Jensen, from his apartment; (3) Jensen told them to come into the apartment, where they found her sitting in a chair and crying; (4) the officers informed her that she would have to leave, but she did not immediately leave; (5) they did not try to physically remove her, because they felt they could calm her down and she would leave; (6) after Gray had asked her to leave two or three times, Bristow left, and Jensen told Gray to look behind a stereo speaker; (7) Gray asked her why he should look, but she repeatedly said only that he should "look behind the speaker"; and (8) Gray turned and looked behind the 1 1/2-to 2-foot-tall speaker and saw a tall, plastic smoking pipe, commonly referred to as a "bong," directly behind the speaker.

Gray further testified (1) he then told Jensen he saw what was back there, but did not do anything further except to tell her she still had to leave; (2) Jensen then got up, pulled the pipe from behind the speaker, and placed it in a bag in front of where Gray was standing; (3) she then went into a bedroom, removed a small glass smoking device covered with white residue, from a jewelry box on top of a dresser, and brought it to Gray; (4) she told Gray the objects belonged to defendant and that he should not be using them; (5) Gray allowed her to go into the bedroom, because he believed she was gathering some of her personal effects to take with her; and (6) Gray took the two pipes from her and told her she still had to leave.

Gray said that while still on the scene, he asked defendant to sit in the front seat of the squad car with him, and he told defendant what Jensen had given him. [Gray then placed Carlile under arrest.]

We examine first the propriety of the seizure of the bong and the other pipe. [The court below concluded that the seizure was improper because the police had no warrant to search the apartment and nobody with authority to authorize a search had consented to the search.] Here, the police officers were clearly in defendant's house at his ... invitation to enter the house to remove Jensen. In doing so, they were performing a "community caretaking function." Gray was performing such a function when he remained in the upstairs room with Jensen attempting to get her to leave peacefully. Nothing concerning the deliberation with which Gray proceeded supports the defendant's contention that when Gray looked behind the speaker, he was performing a search. Gray's undisputed explanation of his bodily movement when he looked behind the speaker was that he "turned and looked at it." A natural response by a peace officer in attempting to get a person to peacefully leave a room would be to turn and look at an object if the person he was attempting to persuade asked him to do so.

Defendant maintains Gray should have been careful when Jensen did not answer after he asked her why he should look behind the speaker. We disagree. Even if he had to take several steps to look behind the speaker, we deem his actions were a natural and proper response to the situation confronting him and the performance of his duty. He might have seen something which bore upon why Jensen was reluctant to leave....

Gray seized the "bong" only after Jensen picked it up and gave it to him. He did not ask or encourage her to do it. She was not his agent in doing so. The fact that Gray was performing a "community caretaking function" in attempting to get Jensen to leave peacefully negates any inference that his continued presence coerced her to bring the item to him. Upon seeing the nature of the bong, Gray had probable cause to seize it.

Similarly, no coercion on Jensen to go into the bedroom to obtain the pipe can be inferred from Gray's continued presence. Clearly, Gray conducted no search to obtain that item. He made no movement to see it. Jensen brought it to him, and he had probable cause to then seize it. By that time he also had probable cause to arrest defendant. Thus, the "bong" and the other pipe should not have been suppressed, and defendant's arrest should not have been quashed. ...

Reversed and remanded with directions.

Would the court have reached the same decision if Officer Gray had been a member of a Narcotics Unit in the department?