People v. Casazza , 202 Ill. App. 3d 792 ( 1990 )

JUSTICE SCOTT

delivered the opinion of the court:

The defendants, Eva Casazza, Elizabeth Chartier, and Kenneth Chartier, were charged with unlawful delivery of cannabis and unlawful possession of cannabis (Ill. Rev. Stat. 1989, ch. 56½, pars. 705(a), 707(a), 704(b)). The defendants thereafter filed a motion to suppress certain evidence seized during a search of Kenneth’s yacht. Following a hearing, the trial court allowed their motion. The State appeals.

At the suppression hearing, Will County sheriff’s department investigator Joseph G. Farmer testified that on September 4, 1989, he was assigned to investigate the death of a 17-year-old boy who had drowned on the evening of September 3 at the Three Rivers Marina in Wilmington, Illinois. Three teenagers informed Farmer that two 40-year-old women had invited them to their 50-foot yacht on the night of September 3. After arriving at the yacht, the teenagers smoked marijuana with the women. The investigator noted that he had received similar information from other sources who told him that on the night in question the drowning victim and six other youths had attended a party on the yacht. The other sources also stated that while on the yacht, the youths had drunk beer and smoked marijuana.

Farmer testified that around 2:30 p.m. on September 4, he and Will County sheriff’s department sergeant Lynn Jencon arrived at the marina and located the yacht in question. The officers were met by Elizabeth Chartier. She and others were staying on the boat for the Labor Day weekend. Investigator Farmer explained to Elizabeth that he was investigating the drowning incident and that he had received information that the drowning victim drank beer and smoked marijuana while on the yacht. Farmer then asked Elizabeth if she would consent to a search. She responded that title to the boat was in her husband’s name and that the officers could not search it. At that point, Sergeant Jencon advised Elizabeth that he had been in contact with the State’s Attorney’s office and that a search warrant could be obtained. Jencon also told her that until the warrant was obtained, she and the other occupants would have to leave the boat.

According to Investigator Farmer, as the occupants of the boat were preparing to leave, he met Kenneth Chartier on the dock. Farmer informed Kenneth of the reason for the investigation and asked him if he would consent to a search of the yacht. Kenneth asked what would happen if he did not consent. Farmer told Kenneth that if he did not sign a search consent form the police “could obtain a warrant” and in the interim he would have to leave the vessel. After considering the matter, Kenneth told the officers that they could search the yacht. Prior to searching, Farmer advised Kenneth of his constitutional rights and of his right to refuse to consent to the search. Kenneth then signed a constitutional rights waiver form and a consent to search form. Thereafter, Farmer conducted a search of the yacht accompanied by Kenneth.

Sergeant Lynn Jencon also testified regarding the circumstances surrounding the search and corroborated much of the testimony of Investigator Farmer. Jencon noted that Farmer advised Elizabeth that they were investigating a drowning death. Elizabeth responded that she was aware of the situation since the youth had been on the boat the previous night. Jencon further stated that after Kenneth signed the consent to search form he accompanied the officers as they conducted their search. According to Jencon, a green leafy material was found in a dresser in the bedroom near the kitchen. Jencon further stated that suspected contraband was also seized from a room occupied by Kenneth.

Based on the foregoing evidence, the trial court concluded that Kenneth’s consent to the search had not been voluntarily given. The court further concluded that his consent was vitiated by the threats of the officers that they could obtain a warrant and that he and the occupants of the boat would have to leave in the interim.

On appeal, the State contends that the trial court erroneously concluded that Kenneth’s consent to the search was not voluntarily given.

To support a search undertaken pursuant to consent, the State must prove by a preponderance of the evidence that the consent was voluntarily given. (People v. Holliday (1983), 115 Ill. App. 3d 141, 450 N.E.2d 355.) The voluntary character of the consent presents a question of fact to be resolved from a consideration of the totality of the circumstances. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041; People v. Griffin (1987), 158 Ill. App. 3d 46, 510 N.E.2d 1311.) A trial court’s determination regarding the voluntariness of the consent will not be disturbed on review unless it is clearly unreasonable. People v. Wahlen (1982), 111 Ill. App. 3d 194, 443 N.E.2d 728.

Here, the trial court had before it evidence of all the circumstances surrounding the consent, including the officers’ threats that they could obtain a warrant and that they would secure the premises in the interim. In addition, the court correctly noted that these threats were made on Labor Day weekend to people who were dwelling on the vessel for the weekend. While we might have decided this issue differently as a trial court, based on the record before us, we are unable to say that the instant trial court’s decision was clearly unreasonable.

Accordingly, the judgment of the circuit court of Will County is affirmed.

Affirmed.

BARRY, J., concurs.