                                         2014 IL App (3d) 130075

                                 Opinion filed May 27, 2014
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                A.D., 2014

     THE PEOPLE OF THE STATE OF                       )       Appeal from the Circuit Court
     ILLINOIS,                                        )       of the 12th Judicial Circuit,
                                                      )       Will County, Illinois.
            Plaintiff-Appellant,                      )
                                                      )       Appeal No. 3-13-0075
            v.                                        )       Circuit Nos. 12-DT-855
                                                      )                    12-TR-56386-91
     MARIA L. SANTOVI,                                )
                                                      )       Honorable Roger Rickmon,
            Defendant-Appellee.                       )       Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Presiding Justice Lytton and Justice O'Brien concurred in the judgment and opinion.


                                                OPINION

¶1          The State charged defendant, Maria Santovi, with driving under the influence, improper

     lane usage, leaving the scene of an accident, failure to give information or render aid, illegal

     transportation of alcohol, operating an uninsured motor vehicle, and failure to reduce speed to

     avoid an accident.

¶2          Defendant filed a petition to rescind her statutory summary suspension.           Following

     testimony in the civil proceeding, the trial court granted defendant's petition, finding that the

     officer effectuated an illegal arrest when the officer threatened to kick the bathroom door down.
¶3            In the criminal matter, a hearing was set on defendant's motion to quash her arrest and

       suppress evidence. The parties stipulated that the trial court would rely on transcripts from the

       hearing on defendant's petition to rescind the statutory summary suspension.

¶4            The trial court held that while the officers' initial entry into defendant's home was

       consensual, the defendant was effectively under arrest at the time the officer threatened to kick

       down the bathroom door.       The court ordered all evidence obtained after the illegal arrest

       suppressed.

¶5            The State appeals, arguing that the trial court erred as a matter of law when it held that

       defendant had been subjected to an illegal arrest.

¶6            We affirm.

¶7                                              BACKGROUND

¶8            On June 30, 2012, defendant was charged by traffic ticket with driving under the

       influence, improper lane usage, leaving the scene of an accident, failure to give information or

       render aid, illegal transportation of alcohol, operating an uninsured motor vehicle, and failure to

       reduce speed to avoid an accident. The State charged defendant with a second count of driving

       under the influence on August 3, 2012.

¶9            Defendant filed a petition to rescind her statutory summary suspension on August 3,

       2012, alleging, in part, that she was subjected to an illegal, warrantless arrest inside her home.

       On October 9, 2012, the trial court held a hearing on defendant's civil petition.

¶ 10          Defendant's husband, Steve Santovi, testified that on the night of Friday June 29, 2012,

       he was at home and defendant had gone to the Taste of Joliet festival. He came home from work

       around 8 p.m. and had consumed three or four beers. When defendant arrived home around




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       11:30 p.m., Mr. Santovi was in the kitchen washing dishes. Defendant seemed fine. She did not

       stumble, stagger, or smell of alcohol. Defendant immediately went into the bathroom.

¶ 11          Shortly thereafter, the doorbell rang and two female officers were holding the storm door

       open. They asked Mr. Santovi, "Who just came home?" He responded that his wife had just

       arrived home. When officers asked to speak to defendant, he told the officers she was in the

       bathroom. Mr. Santovi called for defendant and walked toward the bathroom, which was seven

       to eight steps from the front door. The officers followed him into the home and stood next to

       him by the bathroom door. Mr. Santovi testified he did not give officers permission to enter.

       While waiting for defendant to emerge from the bathroom, one officer went into the garage,

       looked at the side of the car and said, "Yes, there is damage here." Mr. Santovi did not give

       officers permission to enter the garage.

¶ 12          Defendant was in the bathroom for quite some time. The officers knocked, and defendant

       responded that she would "be out in a minute." Officers then opened the door and stated, "Come

       on out here. Can we talk to you?" Mr. Santovi denied hearing defendant give the officers

       permission to open the bathroom door. Defendant eventually emerged. Defendant and officers

       went to the garage. Mr. Santovi testified that he watched defendant exit the bathroom and walk

       to the garage; he did not see her stumble or stagger. Defendant sat on a step in the garage while

       police talked to her.

¶ 13          Defendant called Officer Russell Pruchnicki, a patrol officer for the Plainfield police

       department. Pruchnicki received a dispatch call at 11:47 p.m. on June 29 regarding a hit-and-run

       collision at 135th Street and Route 30. Dispatch advised Pruchnicki that the victim of the hit-

       and-run was following the offending vehicle. He was dispatched to defendant's residence.




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¶ 14          Upon arrival, Pruchnicki testified that two female officers, Tracy Caliendo and Erin

       Cook, and one male officer, Mike Friddle, were already present. Pruchnicki had a conversation

       with defendant while she was seated on the garage step. Defendant denied being in an accident.

       She then admitted that she was in an accident, but she just wanted to arrive home. Pruchnicki

       testified he smelled a strong odor of alcohol on defendant. She also appeared to be semi-

       coherent. Defendant admitted to having drunk four beers when asked if she had consumed any

       alcohol. As for the vehicle, Pruchnicki did not notice any damage, but noted that the front end of

       the vehicle was in contact with a motorcycle, and the motorcycle was pushed against the back

       wall of the garage.

¶ 15          Pruchnicki asked defendant if she would go to the station to answer additional questions.

       He asked defendant if she understood she was not under arrest at that time. She responded in the

       affirmative.   Defendant was not handcuffed.         At the station, Pruchnicki administered field

       sobriety tests, which defendant failed.

¶ 16          Following Pruchnicki's testimony, defendant rested and the State made a motion for a

       directed verdict. The State argued that defendant failed to meet her burden of proof because the

       preceding testimony had established that she was driving under the influence of alcohol (DUI).

       Defendant argued that she was entitled to have her summary suspension rescinded because the

       officers made an illegal, warrantless entry into her home without exigent circumstances to justify

       the intrusion. The State argued that the officers were in hot pursuit and the evidence of the DUI

       would have dissipated by the time they obtained a warrant.

¶ 17          The trial court held no emergency exception or exigent circumstance existed that would

       allow the warrantless entry into defendant's home, and the arrest was, therefore, unlawful. The

       court denied the State's motion for a directed verdict.


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¶ 18          The State called the hit-and-run victim, Shawn Howard. He testified that he was driving

       his car when he was hit by defendant's vehicle. When the defendant's vehicle took off, he

       followed her to her residence, where he waited for police to arrive.

¶ 19          Officer Tracy Caliendo testified that she was a patrol officer for the Plainfield police

       department. She was also a paramedic. Dispatch informed her of a hit-and-run and the specific

       address of defendant's residence. Upon arrival, Caliendo observed the defendant's garage door

       going down and a vehicle matching the description of the victim's vehicle parked out front.

¶ 20          Mr. Santovi answered the front door when Caliendo knocked. Caliendo stated that when

       she asked Mr. Santovi if defendant was alright, he stated that she had too much to drink and the

       officer could come inside and check. Caliendo entered the house and knocked on the bathroom

       door. She could hear defendant inside vomiting. Caliendo testified that her main concern was

       that defendant could have been injured in the crash due to the extreme amount of "vomiting and

       retching" coming from the bathroom.        Caliedo stated she knocked on the door and asked

       defendant to open the door. Defendant responded, "Hold on."

¶ 21          Caliendo continued to knock on the bathroom door for approximately 45 seconds to a

       minute. At that point, she told defendant that she would knock the door down if defendant did

       not open it. Defendant then opened the door; Caliendo observed that defendant's eyes were

       bloodshot, red, and puffy.

¶ 22          Caliendo then asked defendant to come out into the garage so they could discuss the

       crash. Caliendo testified that at no time that evening did she tell defendant she was under arrest.

       Caliendo never physically touched defendant, never placed defendant in handcuffs, and never

       told defendant she was not free to leave. Caliendo also stated that defendant never asked to

       leave, nor did she indicate to Caliendo that she no longer wished to speak to her.


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¶ 23          Following cross-examination of Caliendo, the State rested. The trial court stated that the

       issue "really is whether or not the entry into the house is lawful." The court found that entrance

       into the home was consensual, but continued the hearing for the parties to submit case law and

       for further argument.

¶ 24          The hearing reconvened on November 2, 2012. Defendant argued that she was under

       arrest when Officer Caliendo stated, "If you don't open up the door, I am going to kick it in."

       The State argued that defendant was not placed under arrest until defendant was told she was

       under arrest at the police department. In the alternative, the State argued that if defendant was

       actually under arrest at that point, it was a legal arrest. The State argued that the officers were in

       hot pursuit, an exigent circumstance negating the requirement for a warrant to enter the home.

       Second, the State argued that Officer Caliendo was acting out of concern for defendant's well-

       being, given the vomiting she overheard in the bathroom. Finally, the State contended that

       defendant's opening of the bathroom door was consensual, despite the officer's threats to knock

       the door down.

¶ 25          The trial court rejected the State's various arguments and granted defendant's petition to

       rescind the summary suspension, holding that the officer effectuated an illegal arrest at the time

       she threatened to kick the door down.

¶ 26          The court held a hearing on January 2, 2013, in defendant's criminal case on her motion

       to quash the arrest and suppress evidence. The parties stipulated that the trial court would rely

       on the transcripts from the hearing on defendant's petition to rescind summary suspension when

       ruling on the motion to quash arrest and suppress evidence.

¶ 27          The trial court held that the entrance into the house was consensual. The court found,

       however, that defendant was under arrest at the time the officer threatened to kick down the


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       bathroom door. It stated, "Why this officer didn't wait until she came out and talk [sic] to her, I

       don't know. I don't know but I certainly don't believe it was a wellness check. She was effecting

       the arrest." The court granted defendant's motion to quash arrest and suppress evidence for all

       evidence obtained after the officer's threat.

¶ 28          The State appeals.

¶ 29                                               ANALYSIS

¶ 30          The State's sole argument on appeal is that the trial court erred as a matter of law in

       finding that defendant was the subject of an illegal arrest. Specifically, the State contends that

       defendant consensually opened the door to the bathroom and, therefore, there was no arrest. In

       the alternative, the State argues that even if defendant was under arrest, it was proper because the

       police were in hot pursuit, i.e., exigent circumstances existed such that warrantless entry into the

       defendant's home was valid and evidence therefrom not subject to suppression.

¶ 31                                     I. Consensual Entry and Arrest

¶ 32          Our analysis of the State's argument requires two separate inquires. The first is whether

       one occupant may give law enforcement effective consent to search a shared premises over a co-

       tenant who is present and refuses to give such consent. Neither party effectively addresses this

       issue, instead wrapping defendant's consent into a discussion regarding arrest. While not wrong

       to do so, we find it a distinct issue critical to resolving the case. Second, we address whether the

       officers, by their actions, effectively seized defendant for fourth amendment purposes.

¶ 33                                          A. Consensual Entry

¶ 34          The trial court found, and the parties do not dispute on appeal, that defendant's husband

       consented to the officers' initial entry into the home. However, as cotenants with equal rights to




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       consent (or object) to a search, the husband's authority to consent is not unlimited in the face of

       defendant's demonstrated objection.

¶ 35          The Supreme Court has held that when one person who has common authority over the

       premises consents to a search, his consent is valid against an absent, nonconsenting person who

       shares that authority. United States v. Matlock, 415 U.S. 164, 170 (1974). However, although a

       cotenant gives his consent, a search will be found unreasonable as to a defendant who was

       physically present at the scene and expressly stated his refusal to allow police to enter and search

       the premises. Georgia v. Randolph, 547 U.S. 103, 106 (2006).

¶ 36          We find People v. Parker, 386 Ill. App. 3d 40 (2007), instructive. There, the trial court

       granted defendant's motion to suppress physical evidence. The First District reversed, finding

       the warrantless search of defendant's home after defendant's live-in girlfriend gave consent was

       reasonable and did not violate the fourth amendment. Id. at 45. Defendant was asleep with his

       11-month-old daughter in the back bedroom of the apartment he shared with his girlfriend. He

       testified that when he awoke, three or four police officers were in his bedroom pointing their

       guns at him. Id. at 42. One officer held a piece of paper that he explained was a consent form

       that defendant's girlfriend had signed allowing them to search the home. Defendant stated he did

       not consent to the search and was denied the opportunity to object to the search when the police

       seized him and took him to the front room. Id.

¶ 37          On appeal, the State argued that officers secured a valid consent to search the premises.

       Id. at 43. Defendant maintained that the search was unreasonable because he was awoken and

       seized at gunpoint, then removed from the room and deprived of the opportunity to object to the

       search. Id.




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¶ 38          The court relied heavily on the nuanced holding of Randolph in reversing the suppression

       of physical evidence.      The Randolph court acknowledged that it was drawing a fine line

       regarding co-occupant consent to search cases when it held that " 'if a potential defendant with

       self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not

       suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part

       in the threshold colloquy, loses out.' " (Emphases in original.) Id. at 45 (quoting Randolph, 547

       U.S. at 121). Unlike in Randolph, the court stated, although defendant was present nearby, he

       was not present at the threshold colloquy where his girlfriend gave voluntary consent. Id.

       Defendant therefore "lost out" on his opportunity to object to the search. Id.

¶ 39          We find that the case at bar is factually distinguishable from Parker and more in line with

       the rationale of Randolph. While defendant was not present at the front door making her

       objection to the search clearly and directly known, as was the case in Randolph, we find that

       locking the bathroom door serves the same purpose. Defendant demonstrably objected to any

       further police intrusion into her bathroom and had the right to do so.

¶ 40          In fourth amendment jurisprudence, reasonableness is measured by examining the totality

       of the circumstances. See Illinois v. Wardlow, 528 U.S. 119 (2000). The outcome thus depends

       on the facts of the specific case. Here, where the circumstances are that defendant purposely

       excluded police from the bathroom of her home, and the record reveals that officers easily could

       have secured the premises and sought an arrest warrant, there is no justification to abandoning

       the warrant requirement.

¶ 41          Notwithstanding defendant's own objection to the search, we further find that the officers

       exceeded the scope of defendant's husband's consent to search. See People v. Baltazar, 295 Ill.

       App. 3d 146 (1998) (the search must not exceed the scope of consent). The scope of a person's


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       consent must be measured objectively: what would the typical reasonable person have

       understood by the exchange between the police and the person giving consent? Baltazar, 295 Ill.

       App. 3d at 149-50. Generally, the scope of a search is defined by its expressed object. Florida

       v. Jimeno, 500 U.S. 248, 251 (1991). Under the circumstances present here, the husband's

       apparent authority to allow officers into the residence to talk to defendant did not translate to

       unbounded authority to force her out of a locked room. See People v. Rodgers, 96 Ill. App. 3d

       416 (1981) (defendant's invitation to police to enter his home did not imply consent to enter and

       search all areas when consent was limited to a specific purpose). It is clear on the record that the

       husband's consent was limited to allowing officers inside the home for the purpose of speaking

       with defendant, not to knock down or threaten to knock down interior doors.

¶ 42                                               B. Arrest

¶ 43          For fourth amendment purposes, a person has been seized when his freedom of

       movement has been restrained by means of physical force or a show of authority. People v.

       Melock, 149 Ill. 2d 423, 436-37 (1992) (citing United States v. Mendenhall, 446 U.S. 544, 553

       (1980)). "The relevant inquiry in determining whether a suspect has been arrested is whether,

       under the circumstances, a reasonable person would conclude that he was not free to leave."

       Melock, 149 Ill. 2d at 437.      In some situations, however, where the person's freedom of

       movement is restrained by some factor independent of police conduct, " 'the appropriate inquiry

       is whether a reasonable person would feel free to decline the officers' requests or otherwise

       terminate the encounter.' " People v. Luedemann, 222 Ill. 2d 530, 550 (2006) (quoting Florida v.

       Bostick, 501 U.S. 429, 436 (1991)).

¶ 44          In determining whether a person has been seized, and to assist in determining whether a

       reasonable person believes he or she is not free to leave, courts look to the Mendenhall factors.


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       See People v. Leach, 2011 IL App (4th) 100542. The Mendenhall factors are: (1) the threatening

       presence of several officers; (2) the display of a weapon by an officer; (3) some physical

       touching of the person of the citizen; and (4) the use of language or tone of voice indicating that

       compliance with the officer's request might be compelled. Luedemann, 222 Ill. 2d at 553. These

       factors are not exhaustive, and a seizure can be found on the basis of other coercive police

       behavior similar to the Mendenhall factors. Leach, 2011 IL App (4th) 100542, ¶ 9. The other

       side of that coin, of course, is that in the absence of some such evidence, otherwise inoffensive

       contact between a member of the public and the police cannot, as a matter of law, amount to a

       seizure of that person. Mendenhall, 446 U.S. at 555. Our review of a trial court's ruling on a

       motion to suppress is twofold. The trial judge's factual findings are entitled to deference and will

       be reversed only if manifestly erroneous, while the court's ultimate ruling on whether

       suppression is warranted is a legal question subject to de novo review. People v. McDonough,

       239 Ill. 2d 260, 265-66 (2010).

¶ 45          The State's argument that defendant consensually opened the bathroom door and,

       therefore, was not under arrest is without merit. Clearly, the officer's statement to "Open the

       door or I'll knock it down" is language indicating compliance is compelled. Defendant had the

       option of either staying in the bathroom waiting for the door to be broken in on her, or to come

       out. This is not consensual, nor would a reasonable person in defendant's shoes believe she was

       free to deny the officer's demand or end the encounter with law enforcement. Officer Caliendo

       told defendant what would happen if she did not comply; Caliendo would kick in the bathroom

       door. The State contends that because Officer Caliendo was the only officer present, she did not

       display her weapon, and she never physically touched or told defendant she was under arrest, the

       Mendenhall factors indicating a seizure are not present here. It is hard to imagine that Caliendo's


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       threat that she would knock down the door if defendant did not come out of the bathroom would

       require anything other than defendant's mandatory compliance. The State conceded in oral

       argument that if a reasonable person would not feel free to decline the officer's demand to open

       the door, then it would be a seizure. "Open the door or I'll knock it down" is a command, not a

       request.

¶ 46          The State argues defendant placed herself in a confined area, thus persuading defendant

       to open the bathroom door gave her more freedom of movement, not less. No. The State

       confuses freedom of movement with the freedom to leave or to end the encounter. Whether this

       encounter had occurred in defendant's kitchen, closet, or bathroom, the proper inquiry is whether,

       taking into account all of the circumstances surrounding the encounter, the police conduct would

       " 'have communicated to a reasonable person that he was not at liberty to ignore the police

       presence and go about his business.' " Bostick, 501 U.S. at 437 (quoting Michigan v. Chesternut,

       486 U.S. 567, 569 (1988)). Officer Caliendo's threat clearly communicated to defendant she was

       not at liberty to ignore the officer's request. The officer's conduct constituted an arrest for fourth

       amendment purposes.

¶ 47                                             II. Hot Pursuit

¶ 48          In the alternative, the State contends that even if Officer Caliendo effectuated an arrest of

       defendant, it was legal because the officers had probable cause to believe the defendant had just

       left the scene of the accident and they were in hot pursuit.

¶ 49          It is a basic principle of fourth amendment law that a search or seizure carried out on a

       suspect's premises without a warrant is per se unreasonable unless police can show that it falls

       within one of the carefully designed set of exceptions based on the presence of "exigent

       circumstances." People v. Wimbley, 314 Ill. App. 3d 18, 24 (2000) (citing Payton v. New York,


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       445 U.S. 573, 583 (1980)). "The 'hot pursuit' of a suspect who flees from a public place into his

       residence constitutes an exigent circumstance." People v. Tillman, 355 Ill. App. 3d 194, 198

       (2005) (citing United States v. Santana, 427 U.S. 38, 43 (1976)). Under the hot pursuit doctrine,

       a suspect may not defeat an otherwise proper arrest which has been set in motion in a public

       place by escaping to a private place. Santana, 427 U.S. at 43.

¶ 50          The hot pursuit exception to the warrant requirement is inapplicable to the facts of this

       case. As defendant points out, this arrest was not initiated in public. See People v. Davis, 398

       Ill. App. 3d 940 (2010) (finding that hot pursuit doctrine was inapplicable where officers tried to

       initiate a warrantless arrest despite that fact that defendant had never been in public). Defendant

       was not fleeing police or arrest; she was leaving the scene of an accident. The officers did not

       witness the hit-and-run, nor did they attempt to conduct a traffic stop.        Under the State's

       application of the doctrine, almost any situation where police were simply responding to a call

       from dispatch would constitute hot pursuit and justify a warrantless arrest.           The fourth

       amendment does not allow for such a broad application of the doctrine.

¶ 51          We accordingly find no error in the trial court's suppression order.

¶ 52                                           CONCLUSION

¶ 53          For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

¶ 54          Affirmed.




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