People v. Accardi , 284 Ill. App. 3d 31 ( 1996 )

                  Nos. 2--95--1247 & 2--95--1331 cons.

________________________________________________________________

                                 IN THE

                       APPELLATE COURT OF ILLINOIS

                             SECOND DISTRICT

________________________________________________________________

THE PEOPLE OF THE STATE       )  Appeal from the Circuit

OF ILLINOIS,                  )  Court of Kane County.

                             )    

    Plaintiff-Appellee,      )  No. 92--CF--1570

v.                            )       

                             )  Honorable

GREGORY ACCARDI               )  Thomas E. Hogan and

                             )  John L. Peterson,

    Defendant-Appellant.     )  Judges, Presiding.

________________________________________________________________

THE PEOPLE OF THE STATE       )  Appeal from the Circuit

OF ILLINOIS,                  )  Court of Kane County.

                             )    

    Plaintiff-Appellee,      )  No. 92--CF--1838

v.                            )       

                             )  Honorable

HOLLY ACCARDI,                )  Thomas E. Hogan and

                             )  John L. Peterson,

    Defendant-Appellant.     )  Judges, Presiding.

________________________________________________________________

    JUSTICE THOMAS delivered the opinion of the court:

    Following a stipulated bench trial defendants, Gregory Accardi

and Holly Accardi, were convicted of the unlawful possession of

cannabis (720 ILCS 550/4 (West 1992)).  Defendants appeal,

contending that the trial court erred in denying their motion to

suppress marijuana plants seized during a warrantless search of

their property.

    On September 13, 1992, Sergeant James Griffith of the Illinois

State Police flew an airplane over portions of Kane County to look

for marijuana growing.  He flew at an altitude of 1,000 to 1,100

feet at a speed of 90-95 miles per hour.

    He saw what he believed to be marijuana growing on defendants'

property at the intersection of Route 38 and Meredith Road.

Griffith took photographs of the property and gave them to Sergeant

Roy Garcia, who had the film developed.  Garcia reviewed the

resulting photos with other agents, including William Powell of the

Illinois State Police Task Force.

    Powell decided that he and other members of the task force

would go to defendants' property and try to obtain a consent to

search it.  Accordingly, on September 15, 1992, Powell and five or

six other agents drove to defendants' property.  One of the

officers knocked on the door and Holly Accardi answered it.  The

officer requested that she wake her husband, Greg Accardi.  Greg

Accardi then accompanied the officers on a search of the property.

The agents located and confiscated several marijuana plants.  Greg

Accardi was arrested and taken to the county jail.  No one ever

showed defendants a search warrant.

    The marijuana plants grew near a chicken coop immediately

adjacent to defendants' house.  A long driveway services the house,

a large barn, and the chicken coop.  Trees surround the entire area

encompassed by the three buildings, preventing them from being seen

from either Route 38 or Meredith Road.

    Both defendants were charged with the unlawful possession of

cannabis.  Defendants moved to quash their arrests and suppress

evidence obtained as a result of the warrantless search of their

property.  At a hearing on the motion, defendants testified that

neither of them ever gave the agents permission to search the

property.  Greg Accardi specifically denied signing a consent to

search form.  However, Powell testified that he presented Greg

Accardi with a consent to search form and that the latter signed

it, using the back of Agent Douglas Lamz as a writing surface.  Two

other agents who participated in the search stated that they saw

Greg Accardi sign the consent to search form.  Lamz testified that

Greg Accardi was presented with the form, and Lamz believed that he

signed it, although he could not see him do it.  Each officer

denied that he forged Greg Accardi's name on the consent form.

    Jean Brundage, a document examiner for the Iillinois State

Police, testified that Greg Accardi's signature on the consent to

search form was a forgery.  The testimony of Steven Kane, an expert

retained by the defense, was admitted by stipulation.  Kane also

concluded that Accardi's signature on the form was forged.

    After the hearing, the parties argued the validity of the

consent form.  In response to a question by the court whether the

plants could be seized without a warrant because they were in plain

view from the airplane, the State cited Florida v. Riley, 488 U.S.

445, 102 L. Ed. 2d 835, 109 S. Ct. 693 (1989).

    The court denied defendants' motion, finding that, pursuant to

Riley, "the curtilage of someone's property is not always subject

to the Fourth Amendment language regarding searches and seizures

especially when there is a helicopter or plane involved."  The

court did not make any findings on the consent issue.

    The court denied defendants' motion to reconsider.  Defendants

then submitted to a stipulated bench trial before a different

judge, preserving the issues raised in the suppression motion.  The

court found defendants guilty, and they perfected this appeal.

    Defendants contend that the court erred by relying on Riley to

deny their motion to suppress.  Defendants argue that the area in

which the plants were found was within the curtilage of their home.

Therefore, the police could not physically enter the curtilege to

seize the plants without a warrant or evidence of some exception to

the warrant requirement.

    Ordinarily, a ruling on a motion to suppress will not be

disturbed unless it is manifestly erroneous.  People v. Frazier,

248 Ill. App. 3d 6, 12 (1993).  However, where the facts and the

credibility of the witnesses are uncontroverted, the issue becomes

solely a question of law, subject to de novo review.  Frazier, 248

Ill. App. 3d at 12-13.  Here, the facts regarding the flyover and

subsequent warrantless search of the property are essentially

undisputed.  Therefore, we review this question de novo.

    In California v. Ciraolo, 476 U.S. 207, 90 L. Ed. 2d 210, 106

S. Ct. 1809 (1986), police flying in a fixed-wing aircraft observed

marijuana growing in defendant's yard.  The officers then obtained

a warrant and searched the property.  Although defendant's yard was

surrounded by a double fence, the inner ring of which was 10 feet

high, the Supreme Court held that the flyover was not a "search"

within the meaning of the fourth amendment.  The court found that

defendant's subjective expectation of privacy was unreasonable

because the police made their observations from the public airspace

and thus saw no more than any private citizen could have seen from

the same location.  Ciraolo, 476 U.S. at 213-14, 90 L. Ed. 2d at

217, 106 S. Ct. at 1813.

    In Florida v. Riley, 488 U.S. 445, 102 L. Ed. 2d 835, 109 S.

Ct. 693 (1989), the court followed Ciraolo in holding that a

warrant was not required for an officer's observation of marijuana

from a helicopter hovering 400 feet above defendant's property.

Writing for a four-person plurality, Justice White explained that

Ciraolo held that "the home and its curtilage are not necessarily

protected from inspection that involves no physical invasion."

Riley, 488 U.S. at 449, 102 L. Ed. 2d at 841, 109 S. Ct. at 696

(opinion of White, J., joined by Rehnquist, Scalia, and Kennedy,

JJ.).

    Both Ciraolo and Riley held that a warrant was not required

for the initial flyover because that was not a "search."  Neither

case held, however, that the police were authorized to physically

enter the property to seize the contraband.  In both cases, the

police merely used the information obtained from the flyovers to

secure search warrants.  In Ciraolo, the court implicitly

acknowledged that information obtained during a flyover was limited

to this purpose, stating that "[s]uch observation is precisely what

a judicial officer needs to provide a basis for a warrant."

Ciraolo, 476 U.S. at 213, 90 L. Ed. 2d at 217, 106 S. Ct. at 1813.

    The Supreme Court has consistently adhered to the principle

that a physical invasion of the home or curtilage requires either

a warrant or some recognized exception to the warrant requirement.

"'Belief, however well founded, that an article sought is concealed

in a dwelling house furnishes no justification for a search of that

place without a warrant.' "  Vale v. Louisiana, 399 U.S. 30, 34, 26

L. Ed. 2d 409, 413, 90 S. Ct. 1969, 1971-72 (1970), quoting Agnello

v. United States, 269 U.S. 20, 33, 70 L. Ed. 145, 149, 46 S. Ct. 4,

6 (1925).  Furthermore, plain view itself is not an exception to

the warrant requirement.  As Justice Stewart later explained:

    "[P]lain view alone is never enough to justify the warrantless

    seizure of evidence.  This is simply a corollary of the

    familiar principle discussed above, that no amount of probable

    cause can justify a warrantless search or seizure absent

    'exigent circumstances.'  Incontrovertible testimony of the

    senses that an incriminating object is on premises belonging

    to a criminal suspect may establish the fullest possible

    measure of probable cause.  But even where the object is

    contraband, this Court has repeatedly stated and enforced the

    basic rule that the police may not enter and make a

    warrantless seizure."  (Emphasis in original.)  Coolidge v.

    New Hampshire, 403 U.S. 443, 468, 29 L. Ed. 2d 564, 584, 91 S.

    Ct. 2022, 2039 (1971) (opinion of Stewart, J., joined by

    Douglas, Brennan, and Marshall, JJ.).

    In People v. Schmidt, 168 Ill. App. 3d 873 (1988), the

Appellate Court, First District, upheld the warrantless seizure of

marijuana plants from defendant's yard because it found that the

area from which they were recovered was not within the curtilage.

The appellate court recognized the rule that "a home cannot

lawfully be entered for the warrantless seizure of contraband

observed in plain view by law enforcement officers from an exterior

vantage point."  Schmidt, 168 Ill. App. 3d at 879.

    Here, the State does not dispute the trial court's finding

that the plants were found within the curtilage.  The evidence in

the record supports this finding.  Moreover, the State does not

suggest that exigent circumstances rendered a warrant unnecessary.

Powell testified that the agents had ample time to secure a warrant

and that judges were available for the purpose.  We conclude that

the officers' observation of the marijuana did not authorize the

subsequent warrantless entry on the property to seize the plants.

For this reason, defendants' convictions must be reversed.

    Anticipating this result, the State requests us to remand the

cause for the trial court to make specific findings on the validity

of the consent to search.  Although this issue was the focal point

of the hearing below, the trial court made no specific findings on

this issue, apparently because of its belief that Riley permitted

a warrantless entry and thus rendered consent unnecessary.

    In their reply brief, defendants respond that the facts

adduced at the hearing overwhelmingly support the conclusion that

they never consented to the search and that the purported consent

form introduced at the hearing was a forgery.  Alternatively, they

maintain that this issue is irrelevant because the agents

unlawfully entered their property before obtaining the consent and,

according to the agents' own testimony, agents had "fanned out"

across the property before the consent form was allegedly signed.

    All of the officers testified that Greg Accardi signed the

consent form in their presence and that he was neither threatened

nor coerced prior to doing so.  Although defendants denied signing

the form, this merely creates an issue of fact on this question.

Moreover, the fact-finder is not required to accept experts'

opinions on an ultimate question of fact.  People v. Mahaffey, 166

Ill. 2d 1, 18 (1995).

    Defendants fail to cite authority for their alternative

propositions that the officers could not enter the property even

for the limited purpose of obtaining a consent to search, or that

their "fanning out" across the property prior to the alleged

signing somehow invalidated an otherwise lawful consent.  These

facts might be relevant to a totality-of-the-circumstances

determination that a purported consent was in fact involuntary.

Here, however, defendants do not allege that a purported consent

was coerced; they contend that they never signed the consent form.

    In summary, we reverse defendants' convictions.  We remand the

cause to the trial court with directions to make specific factual

findings regarding the validity of the purported consent to search.

If the trial court determines that neither defendant gave consent

to search the premises then the court shall suppress the evidence

obtained through the search.

    The judgment of the circuit court is reversed, and the cause

is remanded with directions.

    Reversed and remanded with directions.

    McLAREN, P.J., and INGLIS, J., concur.