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                               Appellate Court                        Date: 2016.11.17
                                                                      12:34:43 -06'00'




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



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           MARLON FRANKLIN, Defendant-Appellant.



District & No.    First District, Third Division
                  Docket No. 1-14-0059



Filed             August 24, 2016



Decision Under    Appeal from the Circuit Court of Cook County, No. 11-C6-60259; the
Review            Hon. Luciano Panici, Judge, presiding.



Judgment          Reversed.



Counsel on        Michael J. Pelletier, Alan D. Goldberg, Patricia Mysza, Cassidey
Appeal            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.
                                               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

         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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       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


                                                    -3-
       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.

                                                    -5-
¶ 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.

                                                     -6-
       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

                                                    -7-
       of the circuit court of Cook County.

¶ 33      Reversed.




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