                                         2016 IL App (1st) 140049

                                                                                    THIRD DIVISION
                                                                                      August 24, 2016
                                                 No. 1-14-0059


     THE PEOPLE OF THE STATE OF ILLINOIS,                 )              Appeal from the
                                                          )              Circuit Court of
                           Plaintiff-Appellee,            )              Cook County, Illinois.
                                                          )
                    v.                                    )              No. 11 C6 60259
                                                          )
     MARLON FRANKLIN,                                     )              Honorable
                                                          )              Luciano Panici
                           Defendant-Appellant.           )              Judge Presiding.

            JUSTICE MASON delivered the judgment of the court, with opinion.
            Justices Fitzgerald Smith and Justice Lavin concurred in the judgment and opinion.

                                                     OPINION

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

     a weapon (“AAUW”) 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. 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, 6'3'', 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
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     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


              1
               The 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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       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 back seat, and

       went back to the room, recovering from above the bathroom ceiling 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.

                                               ANALYSIS

¶ 10            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



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

       Vallow was not justified in re-entering 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 re-entry 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.

¶ 11          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. at 542. 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. at 542.

¶ 12          The fourth amendment of the U.S. Constitution protects the rights of people “to be secure

       in their person, 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 search incident to arrest and



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       (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).

¶ 13          We find that Vallow's re-entry 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 re-entering 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.

¶ 14          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 re-entry non-consensual.

¶ 15          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



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       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 re-

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

¶ 16          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

       re-entered 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.

¶ 17          Here, Vallow entered Franklin's room for a non-drug-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 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



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       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 re-enter the room to

       effect Franklin's arrest.

¶ 18           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 re-entry, we find that Vallow's re-entry to the room was authorized

       by consent.

¶ 19           Franklin also contends that even if Vallow could properly re-enter 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.



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¶ 20          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).

¶ 21          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.

¶ 22          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:




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              "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.

¶ 23          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



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       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).

¶ 24           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 re-entered 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. App. 3d 558, 567 (1993)

       ("No amount of probable cause can justify a warrantless search or seizure absent exigent

       circumstances.") (Internal quotation marks omitted.).




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¶ 25          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."

¶ 26          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.

¶ 27          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



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       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.

¶ 28          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.

¶ 29          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.

¶ 30                                            CONCLUSION

¶ 31          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 of

       the circuit court of Cook County.

¶ 32          Reversed.




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