# Petition for Writ of Certiorari — Illinois v. Vought > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1308%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 492 U.S. 911 ## Text MAY 5 1969 whee F SPANIOL, SR Qe... No. In THE Supreme Court of the United States Octosper TERM, 1988 — — THE PEOPLE OF THE STATE OF ILLINOIS, Pe titione a BARTLETT VOUGHT, Respond hi ft. PETITION FOR WRIT OF CERTIORARI TO THE APPELLATE COURT OF ILLINOIS, SECOND JUDICIAL DISTRICT NEIL F. HARTIGAN Attorney General, State of Illinois ROBERT J. RUIZ Solicitor General, State of Illinois TERENCE M. MADSEN MARCIA LL. FRIEDL * Assistant Attorneys Genera! 100 West Randolph Street, 12th Floor Chicago, Illinois 60601 (312) 917-2127 Counsel for Petitione) * Counsel of Reeord Printed by Authority of the State of Illinois (P.O. 34450-—5i—5-2-89) bo i QUESTIONS PRESENTED Whether evidence must be suppressed merely because it is secured in a governmental search conducted pur- suant to a mistaken though reasonable belief in facts establishing valid consent? Whether a governmental search can remain within the scope of a prior private search as contemplated by United States v. Jacobsen where, though the searches involved entry into a suspect’s home, no additional fourth amend- ment interests of the suspect could conceivably have been compromised by the official intrusion? ii TABLE OF CONTENTS QUESTIONS PRESENTED .................. TABLE OF AUTHORITIES ........... anes Bog it i we 8% (Snr a rear eere es ec PUG EROEE. cas cane n ect b seuss ae en eee. CONSTITUTIONAL PROVISION INVOLVED .. STATEMENT OF THE CASE ............... REASONS FOR GRANTING THE WRIT: I. THIS COURT SHOULD GRANT CERTIORARI TO RESOLVE A CONFLICT AMONG THE JU- RISDICTIONS AND CORRECT THE RULING BELOW THAT EVIDENCE MUST BE SUP.- PRESSED MERELY BECAUSE IT IS SE- CURED IN A GOVERNMENTAL SEARCH CONDUCTED PURSUANT TO A MISTAKEN THOUGH REASONABLE BELIEF IN FACTS ESTABLISHING VALID CONSENT ........ II. CERTIORARI SHOULD BE GRANTED BE- CAUSE THE HOLDING BELOW CONFLICTS WITH THOSE FOURTH AMENDMENT PRIN- CIPLES ANNOUNCED BY THIS COURT IN UNITED STATES V. JACOBSEN .......... CPN AIGHOIN icc cueudiee sees sene au enuehes il APPENDIX APP. PAGE Opinion of the Appellate Court of Illinois, Second Judicial District, September 15, 1988 .......... 1-13 Order of the Appellate Court of Illinois, Second Judicial District, Denying Petition for Rehearing, eae k cases ene scsnces 14 Order of the Supreme Court of Illinois Denying Petition for Leave to Appeal, February 1, 1989 .. 15 TABLE OF AUTHORITIES Cases PAGE Commonwealth v. Wahlstrom, 375 N.E.2d 706 Te tke ee ccecces 6 Flanagan v. State, 440 So.2d 13 (Fla.App. Ist EI ee Franks v. Delaware, 438 U.S. 166 (1978) ...... Illinois v. Krull, 480 U.S. 340 (1987) ......... Mincey v. Arizona, 437 U.S. 385 (1978) ....... Nix v. State, 621 P.2d 1347 (Alaska 1981) ..... People v. Adams, 53 N.Y.2d 1, 422 N.E. 537, cert. denied, 454 U.S. 854 (1981) ............... 8 People v. Gary, 387 N.W.2d 877 (Mich. App. GaSe bce psc a ces cccessccces 6 People v. Jacobs, 43 Cal.3d 472, 729 P.2d 757 ES 6 People v. Miller, 40 Ill.2d 154, 238 N.E.2d 407, cert. denied, 393 U.S. 961 (1968) ........... 6 Aanan Qo iV Schneckloth v. Bustamonte, 412 U.S. 218 (1973) .. Snyder v. State, 738 P.2d 1303 (Nev. 1987) .... State v. Carsey, 295 Or. 32, 664 P.2d 1085 (RROD. inc Re VE eo ee eee ee eae State v. Castaneda, 150 Ariz. 382, 724 P.2nd 1 (ERRG i Oe ico s oa aba cee eee State v. Christian, 26 Wash. App. 542, 613 P.2d 1199, affd., 95 Wash.2d 655, 628 P.2d 806 (1981) GE BONED cs teres he pa eae ee ee eee State v. No Heart, 353 N.W.2d 43 (S.D. 1984) .. United States v. Hamilton, 792 F.2d 837 (9th Cir. TS gcac uc ckackdoksseetere eee eee United States v. Jacobsen, 466 U.S. 109 (1984) .. United States v. Leon, 468 U.S. 897 (1984) ..... United States v. Matlock, 415 U.S. 164 (1974) . = United States v. Miller, 800 F.2d 129 (7th Cir. Dc bad kc San eee ere ee | ere err er re rorm yer y trey da United States v. Zapata-Tomallo, 833 F.2d 25 (2nd CA. TIE) 54 Seek a ee Constitutional Provision Us. Come. Ae. TV eee ina oes eee sSjn oOo mD 6 or) In THE Supreme Court of the Anited States Octroser TERM, 1988 THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner, VS. BARTLETT VOUGHT, Respondent. PETITION FOR WRiTf OF CERTIORARI TO THE APPELLATE COURT OF ILLINOIS, SECOND JUDICIAL DISTRICT OPINION BELOW The opinion of the Appellate Court of Illinois, Second Judicial District, is reported at 174 IIll.App.3d 563, 528 N.E.2d 1095, and reproduced in the Appendix hereto. JURISDICTION The judgment of the Appellate Court of Illinois, Second Judicial District, reversing respondent’s conviction of De- cember 8, 1986, was entered on September 15, 1988. A = timely Petition for Rehearing was denied by the appellate court October 14, 1988, and a timely Petition for Leave to Appeal was denied by the Illinois Supreme Court Feb- ruary 1, 1989. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1257(8). CONSTITUTIONAL PROVISION INVOLVED United States Constitution, Amendment IV: The right of the People to be secure in their per- sons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, sup- ported by Oath or affirmation, and particularly de- scribing the place to be searched and the person or things to be seized. STATEMENT OF THE CASE Respondent was charged in the Circuit Court of the 18th Judicial Circuit, DuPage County, Illinois, with the June 23, 1986, possession of and intent to deliver more than 30 grams of a controlled substance containing cocaine. (C. 7) Prior to trial, respondent filed a motion to suppress cocaine and post-arrest statements, alleging that law en- forcement’s entry into his motel room June 23 violated the fourth amendment. At the hearing on respondent’s motion, Karen Morlock, General Manager of the Holiday Inn in Itasca, Illinois, —3.. testified that while on duty at 2:45 p.m. June 23, 1986, she was informed of the following by Executive House- keeper Marina Garcia: After the 1:00 p.m. checkout time that date, maid Anna Olivares intended to clean room 219 because it was due to be a checkout. (C. 73-75) When she discovered a ‘Do Not Disturb” sign on the door, Olivares informed Garcia, who knocked on the door, received no answer, opened the door, and told Olivares to clean the room because she saw nothing within. (C. 75) While clean- ing the room, Olivares discovered an old suitcase and again retrieved Garcia, who opened the suitcase and saw white powder. (C. 76) Motel employee Richard Limukovic then entered the room and observed that the white powder was cocaine (a portion of which authorities later learned he tasted and pocketed). (C. 76-77, 92, 104-05) Morlock called the Itasca Police after having been im- mediately informed of the discovery. (C. 77) At 3:00 p.m., Detective Rusty Votava was dispatched to the Holiday Inn to speak to Manager Morlock. (C. 91) She related her conversation with Garcia, and told Votava that the room had been vacated. (C. 88, 92-93, 115) The two then went to the room, where Morlock knocked on the door and opened it with her pass key after receiving no answer. Upon entering the room, Votava looked about for per- sonal belongings and saw no clothing or other personal ef- fects. (C. 95, 110) However, there were a small amount of change, a hotel key, and two pieces of scratch paper left on the television. (C. 95) Votava then walked to the other end of the room and saw a closed but unlocked suit- case which neither he nor Morlock opened. (C. 96-98) As Votava picked up the phone to call for assistance in secur- ing the room, respondent appeared. (C. 98) Upon respondent’s entry, Votava identified himself as a police officer, exhibited his badge, and asked respon- — ia dent his name and what he was doing in the room. (C. 99-100) Respondent informed that his name was Bart and the room his, but denied knowledge of who might own the suitcase. (C. 100) When respondent was asked if he would mind if Votava opened the suitcase, he said, “No, go ahead. It’s not mine.” (C. 100) Votava proceeded to open the suitcase and observed four plastic bags, one of which was open and leaking a white powdery substance. (C. 100) It was stipulated that respondent rented room 219 the nights of June 21 and 22. (C. 71) Olivares noted clothes hanging up in the room during his occupancy. (C. 79) Her Housekeeper’s Report, which had been prepared at 2:00 a.m. June 23 by an auditor and received in the housekeep- ing department by 7:00 a.m., reflected that room 219 was to be a 1:00 p.m. check out. (C. 80-82) However, respon- dent had in fact paid for an additional night sometime be- tween 7:00 a.m. and 1:00 p.m. June 23 and was a reg: istered guest for that date. (C. 71-72, 82-83) Prior to Votava's entry into room 219, neither he nor any hote: employee checked with the front desk guest registry to ascertain whether that morning respondent had extended his stay. (C. 84) Based on the evidence elicited, petitioner argued that Officer Votava’s conduct was permissible because Manager Morlock had apparent authority to consent to the entry into room 219 and because law enforcement intrusion on privacy interests did not exceed the scope of an already completed private search. Petitioner also argued that, in any event, the exclusionary rule should not be applied because the officer’s actions were taken in good faith. (C. 122-26) The trial court held that Officer Votava’s entry into an apparently unoccupied motel room was proper and “ T . 4 ~ 4 i bh i ry? , , ry? , , " , , > > , * at { ‘= ©, it ¥ is ’ 4 2 > 4 ‘ t t ; | “7 . { ~ a i i 4 ay wise ‘ +} = ‘ all { | : 5 Q . &) ei, A t 1} e, . t ( 4 s ‘ ‘ s \ . i i ‘ 1) +» + . ++ > " > + rot rot ‘ } i a A7is \ pt LLIVITIE 4 oh © | Coss 4ii\ PEILeT ave . ) ry nts nr nt if i ns . iryvu ‘ t’>st eu oe | y+ A : T reat . ry)? ~ ’ 1) } + 18a SUDD ~ eV ide t i it 1 +4 > \ + > _ »\ + » ivas n ¢ ry was \7 ‘ 4 } ’ ’ , ri? t y rif Tna?T re ? ‘ vi no a 4a alu . J SC ril, la res,ul . ‘ a a ? Yr)? T Das ao rT? < y ry) , ‘ne Y y ry) 4 . st SsCa Al ant iis UCallI©, alld is ‘ —_ + ‘ + _ _ _ + on 4 1 } +1 . " ‘ nt i es SLALt ¢ Ss were al ead Dy ne lieya. enury, ‘ . } ¢ +} 4 > + +} lyre} or y A , & i ia CACECD . exciuslonary Uiit rr} g . + ; *\Y ‘ , +> aS a > *¢ »* a i no > yy d Aj} cu t } a CAL b IIt COUT wi ‘ > ‘ 7 . thes 4 yr Votay oo — ee oe : c t i a {) iva > a i is UUIUG 110 LIK 7 lent em Mntnatieadl thin +) hose f +} ‘ ~ \ ‘ } ‘ \ ‘ [>¢) (is () ‘ 4 4 4 ‘. A ‘ il | ne + ' *\Y ; yb \ mr 11? orl, +} A iu t i , y ALS sta AACCUTCUILIIRIY, t . 4 +} + | ye? roy , 1¢ ‘1 | ¥ i rs " +, j A ners . Ney) al r c% a , , , ’ ‘ r\t ? ? ) of = ry ri? : : r) ‘ ePSIK i¢ ~ = i ¢ iL¢ @eTILS OULd Le ; t } . | 7 ftor reatit ner \ a ' 1 a . i‘ . i x 4 b wad it if ‘ Y 4 eal. ? Ye Tyre! t { ° rié ~ es I res ¢ , :] 5 a] < i “ ? a REASONS FOR GRANTING THE WRIT I. THIS COURT SHOULD GRANT CERTIORARI TO RE- SOLVE A CONFLICT AMONG THE JURISDICTIONS AND CORRECT THE RULING BELOW THAT EVIDENCE MUST BE SUPPRESSED MERELY BECAUSE IT IS SECURED IN A GOVERNMENTAL SEARCH CON. DUCTED PURSUANT TO A MISTAKEN THOUGH REA- SONABLE BELIEF IN FACTS ESTABLISHING VALID CONSENT. In United States v. Matlock, 415 U.S. 164, 177 n. 14 (1974), this Court left open the question of whether a search is rendered unreasonable under the fourth amend- ment merely because consent to search was obtained from a third party later determined not to have in fact pos- sessed sufficient control over the premises searched. The holding of the court below, that actual authority is a con- stitutional prerequisite to consent searches, is erroneous and in conflict with the majority of jurisdictions resolv- ing the issue.! Moreover, the court’s invocation of the ex- 1 See United States v. Miller, 800 F.2d 129 (7th Cir. 1986); United States v. Hamilton, 792 F.2d 837 (9th Cir. 1986); United States v. Zapata-Tamallo, 833 F.2d 25 (2nd Cir. 1987); United States v. Peterson, 524 F.2d 167 (4th Cir. 1975); State v. Castaneda, 150 Ariz. 382, 724 P.2nd 1 (1986) (en banc); Snyder v. State, 738 P.2d 1303 (Nev. 1987); Commonwealth v. Wahlstrom, 375 N.E.2d 706 (Mass. 1978); Nix v. State, 621 P.2d 1347 (Alaska 1981); People v. Jacobs, 43 Cal.3d 472, 729 P.2d. 757 (1987) (en banc); State v. No Heart, 353 N.W.2d 43 (S.D. 1984); State v. Christian, 26 Wash. App. 542, 613 P.2d 1199, affd on other grounds, 95 Wash.2d 655, 628 P.2d 806 (1981) (en banc); Flanagan v. State, 440 So.2d 13 (Fila. App. Ist Dist. 1983); People v. Gary, 387 N.W.2d 877 (Mich.App. 1986). But see State v. Carsey, 295 Or. 32, 664 P.2d 1085 (1983); People v. Miller, 40 Ill.2d 154, 238 N.E.2d 407, cert. denied, 393 U.S. 961 (1968). LL LE LLL LL LE LLL LEA NLT CELLET EOE LOE LT CCE LTTE TTT TL LL LT AT TT LTE TE aE — (— clusionary rule where a search was conducted pursuant to an officer’s reasonable though mistaken belief in facts which would establish a third party’s authority to con- sent is inconsistent with this Court’s decisions in United States v. Leon, 468 U.S. 897 (1984), and Illinois v. Krull, 480 U.S. 340 (1987), recognizing good faith exceptions to the judicially-created sanction. It is well-established that probable cause supporting the issuance of a search warrant may be based on informa- - tion appropriately accepted by the governmental affiant as true though it is later exposed to be false. See general- ly Franks v. Delaware, 438 U.S. 166 (1978). Similarly, warrantless searches are permissible provided authorities “reasonably believe” an emergency exists. Mincey v. Arizona, 437 U.S. 385, 392 (1978). Because law enforce- ment holds a legitimate and substantial interest in con- ducting searches pursuant to voluntary consent [Schneck- loth v. Bustamonte, 412 U.S. 218, 227-29 (1973)], an of- ficer’s reasonable reliance on facts which would establish an individual’s authority to consent if true should also serve to validate the ensuing search under the fourth amendment. A contrary finding would leave nearly all third party consent searches open to attack since only by employing continued police surveillance could authorities actually know, prior to the search, that a third party holds the power to permit inspection “in his own right” through mutual use of property amounting to “‘general[ ]. . . joint access or control for most purposes.’’ United States v. Matlock, 415 U.S. 164, 171 n. 7 (1974). And where the officer reasonably believes that the consenting party has sole authority to consent, he is not on notice that other privacy interests are even implicated. Even if this Court were to hold that the fourth amend- ment will not tolerate searches conducted pursuant to an a ea officer’s mistaken though reasonable belief in facts estab- lishing consent, it would nonetheless be inappropriate to apply the exclusionary rule to evidence thereby secured where information supporting the search was directly sup- plied by the consenting party. In Leon and Krull, this Court observed that due to the societal costs in-with- holding relevant, reliable evidence from the truth seek- ing process in a criminal trial, the exclusionary rule should be invoked only in circumstances where it provides a sig- nificant and additional deterrent to fourth amendment vio- lations. This Court further observed that where officers reasonably rely on statutes or search warrants later de- termined to be unconstitutional, there exists no police il- legality and thus nothing to deter. Just as officers cannot generally be expected to question the validity of a warrant or statute, they should ordinarily be entitled to rely on the representations of a citizen con- cerning his own mutual use of or exclusive control of prop- erty. Given the legitimacy of and pervasive reliance on consent searches in law enforcement, exclusion of evidence thereby secured will not deter future consent searches if officers have no reason to discredit the consenting par- ty’s factual assertions which support his legal authority to consent. See People v. Adams, 53 N.Y.2d 1, 422 N.E.2d 537, cert. denied, 454 U.S. 854 (1981). In the present case, Karen Morlock informed Officer Votava that she was the General Manager of the motel and that subsequent to the 1:00 p.m. checkout time, maid Olivares discovered a suitcase reportedly containing co- caine in room 219 which had been vacated. Because there existed no apparent cause to question Morlock’s assertion that room 219 was no longer occupied, the officer’s reli- ance on her representations in entering the room was rea- sonable. Further, though respondent’s sudden appearance = = might have suggested a mistake had been made, he im- mediately disclaimed ownership of the suitcase thus inde- pendently authorizing its search. Accordingly, the facts and decision below afford this Court the opportunity to resolve a legal conflict among the jurisdictions and to cor- rect error in the exclusion of unquestionably probative evidence. Il. CERTIORARI SHOULD BE GRANTED BECAUSE THE HOLDING BELOW CONFLICTS WITH THOSE FOURTH AMENDMENT PRINCIPLES ANNOUNCED BY THIS COURT IN UNITED STATES V. JACOBSEN. In United States v. Jacobsen, 466 U.S. 109, 113 (1984), this Court reiterated the well-established principle that the fourth amendment does not protect against unreason- able searches or seizures effected through purely private action. This Court further held that where a governmen- tal search follows a private one, the legality of the govern- mental intrusion “‘must be tested by the degree to which [it] exceeded the scope of the private search.” Jd. at 115. In the present case, the inside of respondent’s room and suitcase was examined by maid Olivares, Executive House- keeper Garcia and motel employee Limukovic prior to Of- ficer Votava’s involvement. As in Jacobsen, the govern- mental search was conducted pursuant to unsolicited, pri- vate invitation and followed ‘‘on the heels of” the private search such that there was a “virtual certainty” the con- tents of the room had not been altered by respondent in the interim. /d. at 115, 119. Indeed, until respondent ap- peared in the room and himself invited Votava to open the suitcase, the officer’s potential compromise of any fourth amendment interests was considerably less exten- sive than that effected by Limukovic, who had actually =o viewed, tasted and obsconded with a portion of the co- caine.? Officer Votava did not infringe on any fourth amend- ment interest not already frustrated by private conduct. Because this circumstance justified his actions indepen- dent of any belief that room 219 was unoccupied, the lower court’s erroneous refusal to apply Jacobsen war- rants this Court’s review. CONCLUSION For all the reasons discussed herein, a writ of certiorari should issue to review the decision of the Illinois Appel- late Court. Respectfully submitted, NEIL F. HARTIGAN Attorney General, State of Illinois ROBERT J. RUIZ Solicitor General, State of Illinois TERENCE M. MADSEN MARCIA L. FRIEDL * Assistant Attorneys General Counsel for Petitioner * Counsel of Record 2 The lower court’s refusal to apply Jacobsen because the suit- case was purportedly seized from respondent (App. at 5, 6) ignores his immediate disclaimer of ownership. More important, that a con- tainer was seized from a suspect holds significance only insofar as it becomes more likely additional privacy or possessory interests exist because the contents have been altered or the item is in cur- rent use. Similarly, the lower court’s concern that authorities made a warrantless entry into a “home” (App. at 6) would be legitimate only if it were not clear whether respondent had utilized the room subsequent to the private entry. APPENDIX a App. 1 No. 2-87-0015—Filed September 15, 1988 IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, BARTLETT VOUGHT, Defendant-Appellant. Appeal from the Circuit Court of Du Page County. No. 86 CF 1036 Hon. Edward W. Kowal, Judge Presiding. JUSTICE NASH delivered the opinion of the court: Defendant, Bartlett Vought, was convicted of the unlaw- ful possession of 30 or more grams of a controlled sub- stance with intent to deliver and was sentenced to a 10-year term of imprisonment and fined $240,000. On ap- peal, defendant contends that the trial court erred in de- nying his motion to suppress evidence obtained as a result of a warrantless entry into his hotel room by a police of- ficer. Defendant also contends, and the State concedes, that in the event his conviction is affirmed on appeal, defendant must receive a credit of $915 toward his fine as a result of time spent in custody between his arrest and sentencing. (People v. Hare (1988), 119 Ill. 2d 441, 519 N.E.2d 879.) The State asserts that the officer’s en- try and subsequent search of defendant’s room did not violate the fourth amendment because (1) the search did App. 2 not exceed the scope of a previous private search by hotel employees; (2) the officer had a good-faith belief that the room was vacant at the time he entered it; (3) the co- caine in the suitcase posed a potential danger to hotel em- ployees; and (4) defendant abandoned any interest in the suitcase in which the contraband was found when he told the officer it did not belong to him. We reverse. At the hearing on defendant’s motion to suppress evi- dence the parties stipulated that defendant rented room 219 at the Holiday Inn ir Itasca from June 21, 1986, through and including June 23, 1986. He arranged and paid for his final day’s lodging at some time between 7 a.m. and 1 p.m. on June 23. One of the hotel maids, Anna Olivares, checked room 219 during the morning of June 23 and saw clothes hanging up. As her housekeeping sheet showed that the guest in room 219 was due to check out that day, and the room was still occupied, Olivares decided to clean it after the 1 p.m. check-out time. When Olivares returned to the room after 1 p.m. and saw a “‘do not dis- turb” sign on the door, she informed her supervisor, Maria Garcia, who knocked on the door, unlocked it after receiv- ing no answer, and told Olivares to clean the room. After Olivares began to clean the room she noticed a suitcase beside one of the beds. The suitcase was closed, but was not locked, and Olivares opened it. She noticed a white powdery substance inside the suitcase and called in Garcia. Another hotel employee, Richard Limukovic, also entered the room at this time. Limukovic tasted the substance and stated that he believed it was cocaine. Gar- cia informed the hotel general manager, Karen Morlock, about the discovery of the suitcase and its contents at about 2:45 p.m. Morlock called the Itasca police department, and Officer Rusty Votava arrived at the hotel a few minutes later. Morlock informed the officer that a maid had found a suit- case in room 219 which might contain illegal drugs and that the room was unoccupied. Morlock had not checked the hotel’s guest registry list at that time to determine App. 3 the occupancy status of the room, and her belief that the room was unoccupied was based upon her conversation with Garcia. Officer Votava did not ask Morlock at this time if she had checked the hotel’s records with regard to the occupancy status of room 219, nor did he ask her to do so. Officer Votava and Morlock entered room 219 at approx- imately 3 p.m., and the “do not disturb” sign was still on the front door. Morlock opened the door with a pass key after knocking and receiving no response. The only personal effects in the room were some change and a hotel key on a television stand, scratch paper on top of the television, and the suitcase. Votava was calling the Itasca police department for assistance in securing the room when the defendant walked into the room. When Votava asked if defendant would mind if he opened the suitcase, defendant stated that he would not mind and that the suitcase did not belong to him. Votava then opened the suitcase, which had been closed but unlocked, and dis- covered contraband subsequently determine to be 799.1 grams of cocaine. Votava placed defendant under arrest. The trial court denied defendant’s motion to suppress and held a bench trial at which the evidence was received by stipulation. The parties stipulated, among other things, that defendant made certain incriminating statements after his arrest; that at about 3:30 p.m. on June 23, Votava gave defendant Miranda warnings at the Itasca police station, which defendant stated that he understood and signed a Miranda waiver form. Defendant told Votava that he had flown to Chicago with two other men, one of whom he referred to as Alan and the other as Murphy. Alan carried the suitcase on the plane and took it to the Holiday Inn where it was later moved to defendant’s room. Detective William Simmons of the Metropolitan Enforce- ment Group and Officer Michael Tellone of the Itasca police department also questioned defendant at about 7:05 p.m. on June 23, 1986. They repeated the Miranda warn- App. 4 ings, and defendant signed another waiver form. Defen- dant stated that he received the cocaine from an individual in Florida and that he and two other men agreed to take the cocaine to Chicago by airplane and to deliver it to an individual in the Chicago area. Defendant and the others took a flight to Chicago on June 21, during which the cocaine was taped to their legs. The delivery fell through, and defendant was planning to return to Florida with the cocaine when Officer Votava arrested him. On June 24, 1986, during the early morning hours, while Officer Votava transferred defendant to the Du Page County jail, defendant apologized for lying to Votava the previous day, stating that the recent attempted drug transaction was his first effort in retailing cocaine and it did not work out. Defendant renewed the suppression motion at the stip- ulated bench trial, and it was once again denied. The trial judge found defendant guilty, imposed sentence, and this appeal followed. It is undisputed by the parties that defendant was a registered guest in room 219 on June 23, 1986. The fourth amendment constraints against unreasonable searches and seizures apply to guests in hotel rooms, just as they apply to tenants in homes and residents of boarding houses. (Stoner v. California (1964), 376 U.S. 483, 490, 11 L. Ed. 2d 856, 861, 84 S. Ct. 889, 893.) In Stoner, a hotel desk clerk advised police officers that a robbery suspect was staying in the hotel but was not in his room at that time. The officers asked the clerk for permission to enter the suspect’s room, and the clerk consented. The court held that the clerk had no authority to consent to the search and stated that the right of hotel guests to be protected from unreasonable searches and seizures “would disappear if it were left to depend upon the unfettered discretion of an employee of the hotel.” (Stoner, 376 U.S. at 490, 11 L. Ed. 2d at 861, 84 S. Ct. at 893.) Under Stoner, a hotel guest receives the same constitutional protection against unreasonable searches and seizures in his room App. 5 that an occupant of a more permanent type of residence receives with regard to his house or apartment. People v. Wilson (1980), 86 Ill. App. 3d 637, 640, 409 N.E.2d 988. The State argues, however, that fourth amendment con- cerns are not implicated in the present case because the cocaine was initially discovered during the course of a private search by hotel employees, and the subsequent search by Officer Votava did not exceed the scope of that private search. The State relies primarily upon United States v. Jacobsen (1984), 466 U.S. 109, 80 L. Ed. 2d 85, 104 S. Ct. 1652, in which employees of a private freight company examined the contents of a damaged package in which they found a 10-inch long tube which was covered by crumpled pieces of newspaper. The tube contained four plastic bags, one of which contained a white powdery sub- stance. The employees notified the Drug Enforcement Ad- ministration about the package and, before the first DEA agent arrived, put the plastic bags inside the tube which was then returned to the box. The agent retrieved the bag with the powdery substance, field tested a portion of the contents, and learned that the bag contained co- caine. The court held that the actions of the agents did not violate the fourth amendment and stated that “the federal agents did not infringe any constitutionally pro- tected primary interest that had not already been frus- trated as a result of private conduct.” Jacobsen, 466 U.S. at 126, 80 L. Ed. 2d at 102, 104 S. Ct. at 1663. The State’s reliance upon Jacobsen is misplaced. The court stated in a footnote to that opinion that the case was distinguishable from one in which the police simply learn from a private individual that there is contraband inside a container, seize the container from its owner, and then conduct a warrantless search. The court stated that under such circumstances the search would be unconstitu- tional. (Jacobsen, 466 U.S. at 120 n.17, 80 L. Ed. 2d at 98 0.17, 104 S. Ct. at 1660 n.17.) In the case at bar, unlike Jacobsen, the contraband was seized from the defendant. The United States Supreme Court recognized in Jacobsen App. 6 that, under such circumstances, the defendant retains a legitimate expectation of privacy with respect to the con- tainer, even if a private individual has seen the contraband inside the container. The State’s argument must therefore fail. Another factor which distinguishes the present case from Jacobsen is the fact that Officer Votava made a war- rantless entry into defendant’s hotel room in order to seize the contraband. The Stoner holding establishes that hotel guests are entitled to the same fourth amendment protections as occupants of residences of a more perma- nent nature. (Stoner v. California (1964), 376 U.S. 488, 490, 11 L. Ed. 2d 856, 861, 84 S. Ct. 889, 893.) Comment- ing upon Jacobsen, Professor LaFave states, “it is to be doubted that if a private person searched the premises of another and then reported to the police what he had found (instead of removing the evidence and handing it over to the police), that the police could then make a war- rantless entry of those premises and seize the named evi- dence.”” W. LaFave, Search and Seizure, §1.8(b), at 188 (1987). We agree with Professor LaFave’s conclusion. The right of an individual to be free from governmental intrusions into his home lies at the core of the fourth amendment. (Payton v. New York (1980), 445 U.S. 573, 589-90, 63 L. Ed. 2d 689, 653, 100 S. Ct. 1371, 1382.) Warrantless en- tries into residences are per se unreasonable unless exigent circumstances are present. (Payton, 445 U.S. at 590, 63 L. Ed. 2d at 658, 100 S. Ct. at 1382.) The State’s position that, absent exigent circumstances, a police of- ficer may make a warrantless entry into a hotel room or other residence merely because a private individual has seen contraband inside the residence is squarely at odds with Payton and would largely eviscerate the warrant re- quirement of the fourth amendment. We reject the State’s contention that Officer Votava’s warrantless entry and search were proper because of the prior private search by hotel employees. App. 7 The State next contends that the trial court properly refrained from applying the exclusionary rule to suppress the evidence in question because Officer Votava had a rea- sonable, good-faith belief that defendant’s hotel room was vacant and that the general manager of the hotel, Karen Morlock, had authority to consent to the search. It is clear that a hotel manager may validly consent to the search of a vacant room. (United States v. Akin (7th Cir. 1977), 562 F.2d 459, 464.) The State asserts that the good-faith doctrine espoused by the United States Supreme Court in United States v. Leon (1984), 468 U.S. 897, 82 L. Ed 2d 677, 104 S. Ct. 3405, should be applied here because of Morlock’s apparent authority to consent to the entry and search. In Leon, the court concluded that evidence seized by officers reasonably relying upon a warrant issued by a detached and neutral magistrate is admissible even if the warrant is later determined to be invalid. (Leon, 468 U.S. at 913, 82 L. Ed. 2d at 692, 104 S. Ct. at 3415.) The court stated that punishing police officers for errors made by magistrates ‘‘cannot logically contribute to the deterrence of Fourth Amendment violations.” 468 U.S. at 921, 82 L. Ed. 2d at_697, 104 S. Ct. at 3419. The State argues that the Leon doctrine should be ex- tended to situations in which a police officer makes a warrantless entry into a private residence based upon a reasonable, but mistaken, good-faith belief that another person who consented to the entry had the authority to do so. We find no basis to do so and note that in Leon the police officer did have a search warrant that had been issued by a neutral and detached magistrate. In Johnson v. United States (1948), 333 U.S. 10, 92 L. Ed. 436, 68 S. Ct. 367, Mr. Justice Jackson, writing for the majority, made the following statement concerning the rationale behind the fourth amendment warrant requirement: “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences App. & which reasonable men draw from evidence. Its pro- tection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any as- sumption that evidence sufficient to support a magis- trate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. * * * When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforce- ment agent.” (Johnson, 333 U.S. at 13-14, 92 L. Ed. at 440, 68 S. Ct. at 369.) In accord with this policy, as we have previously noted, the United States Supreme Court has held that warrant- less entries into private premises by law enforcement officials are per se unreasonable unless exigent circum- stances are present. Payton v. New York (1984), 445 U.S. 573, 590, 63 L. Ed. 2d 639, 653, 100 S. Ct. 1371, 1382. We consider that Payton is consistent with Leon where the court noted that the primary purpose of the exclu- sionary rule is to deter unlawful police conduct and stated that when an officer has relied in good faith upon a search warrant obtained from a judge or magistrate, and has acted within its scope, there is no improper police con- duct to deter. (Leon, 468 U.S. at 920-21, 82 L. Ed. 2d at 697, 104 S. Ct. at 3419.) The only improper conduct claimed in Leon was the decision of the judge to issue a search warrant; by contrast, a decision to make a war- rantless entry and search is made by the police them- selves. The purpose of the rule set forth in Payton is to deter police officers from making such a decision unless exigent circumstances are present, and, unlike the situa- tion in Leon, the rule clearly has an effect upon police conduct. We reject the State’s argument that the good- faith doctrine in Leon is applicable in the context of this App. § case (see People v. Ross (1985), 133 Ill. App. 3d 66, 73-74, 478 N.E.2d 575) and conclude, in accordance with Payton, that Officer Votava’s warrantless entry into room 219 must be considered unreasonable unless exigent circum- stances were present. Our conclusion is consistent with decisions in prior Illinois cases rejecting the argument that warrantless entries and searches may be upheld if the par- ty who consented to the entry had apparent authority to do so but lacked actual authority. (See People v. Miller, (1968), 40 Ill. 2d 154, 157-58, 238 N.E.2d 407, 409; People v. Bochniak (1981), 93 Ill. App. 3d 575, 577, 417 N.E.2d 722, 724.) Nor would the good-faith exception to the ex- clusionary rule recently enacted by the Illinois General Assembly prevent suppression of the evidence in this case, as it was not seized pursuant to a warrant issued by a judge or pursuant to a warrantless search incident to an arrest for violation of a statute or ordinance which was subsequently invalidated. See II]. Rev. Stat. 1987, ch. 38, pars. 114-12(bX1), (bX2)i), (bX2)ii). The State does claim that exigent circumstances existed, asserting that the mere presence of cocaine in room 219 created an emergency situation because of the potential danger to hotel employees, citing People v. Meddows (1981), 100 Ill. App. 3d 576, 427 N.E.2d 219, a case which is readily distinguishable from the case at bar. In Med- dows, the court held that a warrantless search of a house trailer was proper when one of defendant’s relatives in- formed police that there was dynamite inside the trailer. (Meddows, 100 Ill. App. 3d at 581, 427 N.E.2d at 222.) Defendant lived in the trailer with his wife and stepson, and the police had reason to believe several children were in the trailer at the time. The court stated that the pur- pose of the search was to prevent a potential disaster and held that the search was justified because it fell within the emergency exception to the warrant requirement. Meddows, 100 Ill. App. 3d at 581, 427 N.E.2d at 222. In Meddows, the mere presence of dynamite in the house trailer posed an immediate danger of substantial harm to the persons inside the trailer and, potentially, App. 10 to others as well. The presence of cocaine in a suitcase in room 219 did not, by itself, pose an immediate danger to anyone. In United States v. Costa (D.D.C. 1973), 356 F. Supp. 606, the court rejected the argument that the mere presence of narcotics inside a hotel room is suffi- cient to justify a warrantless entry and search on the basis of exigent circumstances, stating, ‘“‘Narcotics are dangerous but passive per se. They posed no immediate danger to the community or police.” (Costa, 356 F. Supp. at 611.) In the case at bar, any potential danger to hotel employees could have been averted by locking the door to room 219 and preventing entry while a search war- rant was sought. We do not agree that the warrantless entry and search can be justified on the basis that a potential emergency existed. Finally, the State asserts that the cocaine seized from the suitcase in room 219 was admissible in evidence be- cause defendant lost any expectation of privacy by tell- ing Officer Votava to go ahead and look inside the suit- case and that it did not belong to defendant. (See People v. Hanlon (1985), 137 Til. App. 3d 305, 314, 483 N.E.2d 1332, 1338.) Whether this statement is considered an aban- donment of defendant’s interest in the suitcase, as the State argues, or consent to the subsequent search, it must be determined whether the cocaine was the fruit of Of- ficer Votava’s illegal entry into the hotel room. Under the exclusionary rule, evidence obtained during or as a direct result of an unlawful entry is generally inadmissi- ble. (Wong Sun v. United States (1963), 371 U.S. 471, 485, 9 L. Ed. 2d 441, 454, 83-S.-C€t- 407, 416.) Evidence will not be considered “fruit of the poisonous tree” simply because it would not have been discovered but for the illegal actions of the police. (Wong Sun, 371 U.S. at 487-88, 9 L. Ed. 2d at 455, 83 S. Ct. at 417.) Instead, the deter- minative question is whether the evidence has been dis- covered by exploitation of that illegality or by means suf- ficiently distinguishable to be purged of the primary taint. 371 U.S. at 488, 9 L. Ed. 2d at 455, 83 S. Ct. at 417. App. 11 In Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, the United States Supreme Court set forth factors for determining whether inculpatory state- ments by a defendant following an arrest are sufficiently purged of the taint of the arrest to be admitted into evi- dence. These factors are (1) whether Miranda warnings were given, (2) the amount of time that elapsed between the arrest and the statements, (3) the presence of any in- tervening circumstances, and (4) the purpose and flagrancy of the police misconduct. (Brown, 422 U.S. 590, 603-04, 45 L. Ed. 2d 416, 427-28, 95 S. Ct. 2254, 2261-62.) Al- though Brown involved the admissibility of a confession following an illegal arrest, we consider the factors to be relevant in determining whether defendant’s consent to the search or abandonment of the suitcase sufficiently at- tenuated the taint of the illegal entry. See People v. Odom (1980), 83 Ill. App. 3d 1022, 1028, 404 N.E.2d 997, 1002. No Miranda warnings were given in the case at bar, nor was defendant advised that he did not have to con- sent to the search. The amount of time between the il- legal entry and the discovery of the cocaine was very brief; Officer Votava found the cocaine within minutes of the illegal entry. There were no intervening circumstances between the illegal entry and the abandonment of the suit- case or consent to the search which would indicate that this was an intervening act of a free will sufficient to dissipate the taint of the illegal entry. (Wong Sun v. United States (1963), 371 U.S. 471, 486, 9 L. Ed. 2d 441, 454, 83 S. Ct. 407, 416-17.) Although the police miscon- duct was not flagrant, due to Officer Votava’s belief that room 219 was vacant, the other factors suggest that defen- dant’s consent to the search or abandonment of the suit- case did not purge the primary taint of the illegal entry. Compare People v. Hanlon (1985), 127 Ill. App. 3d 305, 313-14, 483 N.E.2d 1332. We must also consider whether the inculpatory state- ments made by defendant should have been suppressed. Utilizing the Brown factors, we note first that defendant App. 12 did receive Miranda warnings before making the state- ments and that they were made within a relatively short period of time after the illegal entry. The first statements were made approximately 30 minutes after the entry; the next set of statements was made about four hours after the entry; and defendant’s apology to Officer Votava for lying occurred within 24 hours of the entry. There were no intervening circumstances between the entry and the statements to indicate that they were sufficiently an act of free will to purge the primary taint of the illegal in- ~ vasion. While we have noted that the police misconduct was not flagrant, the nature of that misconduct must be considered as well. (People v. Robbins (1977), 54 Ill. App. 3d 298, 305, 369 N.E.2d 577, 581.) Defendant made the inculpatory statements after Officer Votava found the co- caine in his hotel room. Confronting a suspect with illegal- ly seized evidence under circumstances such as these tends to induce a confession by demonstrating that it is futile to remain silent. (Robbins, 54 Ill. App. 3d at 305, 369 N.E.2d at 581.) As in Robbins, it is most probable that defendant confessed only because he was caught red- handed. We conclude that defendant’s confessions were not sufficiently an act of free will to purge the primary taint of the illegal entry. Wong Sun v. United States (1963), 371 U.S. 471, 486, 9 L. Ed. 2d 441, 454, 83 S. Ct. 407, 416-17; People v. Koniecki (1985), 135 Ill. App. 3d 394, 401-03, 481 N.E.2d 973. Once the defendant establishes the causal connection be- tween the primary illegality and the alleged fruits of the illegality, the State has the burden of demonstrating by clear and convincing evidence that the challenged evidence was obtained by means sufficiently distinguishable to be purged of the primary taint. (People v. Robbins (1977), 54 Ill. App. 3d 298, 305, 369 N.E.2d 577, 581.) The causal connection between Officer Votava’s illegal entry and both the cocaine seized from the hotel room and defendant’s inculpatory statements is clear, and the State failed to demonstrate that this evidence was obtained by means App. 138 sufficently distinguishable to be purged of the primary taint. We conclude that both the cocaine and the defendant’s inculpatory statements should have been suppressed. De- fendant’s conviction must be reversed and the cause re- manded to the circuit court for a new trial. Reversed and remanded. REINHARD and UNVERZAGT, JJ., concur. App. 14 (Letterhead of) STATE OF ILLINOIS APPELLATE COURT SECOND DISTRICT Appeal from the Circuit Court of County of DuPage Trial Court Number: 86CF1036 THE COURT HAS THIS DAY, 10/14/88, ENTERED THE FOLLOWING ORDER IN THE CASE OF: Gen. No.: 2-87-0015 People v. Vought, Bartlett Petition for Rehearing by Plaintiff- Appellee is denied. Nash, Reinhard, Unverzagt, JJJ. LOREN J. STROTZ, CLERK ce: G. Joseph Weller, Deputy Defender Robert C. Cooper Honorable James E. Ryan William L. Browers, Deputy Director Marshall M. Stevens App. 15 (Letterhead of) ILLINOIS SUPREME COURT JULEANN HORNYAK, CLERK Supreme Court Building Springfield, Ill. 62706 (217) 782-2035 February 1, 1989 State’s Attorney DuPage County 207 Reber Street Wheaton, IL 60187 No. 67932—People State of Illinois, petitioner, v. Bartlett Vought, respondent. Leave to appeal, Appel- late Court, Second District. The Supreme Court today DENIED the petition for leave to appeal in the above entitled cause. The mandate of this Court will issue to the Appellate Court on February 23, 1989. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1308%3A1. Public record. Not legal advice.