People v. Kolesnikov ( 2021 )

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Appellate Court Date: 2021.02.16
15:46:31 -06'00'
People v. Kolesnikov, 2020 IL App (2d) 180787Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DMITRY KOLESNIKOV, Defendant-Appellant.
District & No. Second District
No. 2-18-0787
Filed August 24, 2020
Decision Under Appeal from the Circuit Court of Lake County, No. 17-CF-1774; the
Review Hon. James K. Booras, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Thomas A. Lilien, and Steven L. Walker, of State
Appeal Appellate Defender’s Office, of Elgin, for appellant.
Michael G. Nerheim, State’s Attorney, of Waukegan (Patrick Delfino,
Edward R. Psenicka, and David Friedland, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE HUDSON delivered the judgment of the court, with
opinion.
Justices Hutchinson and Jorgensen concurred in the judgment and
opinion.
OPINION
¶1 Defendant, Dmitry Kolesnikov, was convicted of unlawful possession of cannabis (720
ILCS 550/5(f) (West 2016)). The trial court imposed a three-year sentence. The trial court
determined that police officers’ entry into defendant’s home was justified in accordance with
the community-caretaking doctrine and that they were lawfully inside defendant’s premises
when they observed cannabis plants in plain sight. Defendant now appeals, and for the reasons
that follow, we affirm.
¶2 I. BACKGROUND
¶3 On June 27, 2017, at about 8 a.m., police were dispatched to defendant’s residence.
Defendant’s ex-girlfriend had made a 911 call and indicated that defendant was suicidal. Two
officers, Ken Berryhill and Rebecca Foy of the Vernon Hills Police Department, arrived and
made contact with defendant outside of the residence. Subsequently, they entered and observed
cannabis plants in plain view. They then obtained a warrant and seized the plants. Defendant
moved to suppress, challenging the officers’ entry into the house. A hearing was held on
defendant’s motion.
¶4 Berryhill testified first at the hearing. He stated that he was dispatched to defendant’s home
along with Foy. They arrived in separate cars at about 8 a.m. Both officers were in uniform.
Berryhill testified that they were “dispatched to a possible suicidal subject where the
complainant was an ex-girlfriend of the subject.” The complainant “had received some emails
from [defendant’s] account stating that he wished to commit suicide and left [sic] a picture of
a knife.” Berryhill was informed that defendant was the subject. A driver’s license photograph
of defendant was sent to Berryhill.
¶5 Berryhill and Foy approached the front door of defendant’s residence (defendant lived in a
townhouse). They knocked or rang, and defendant answered the door. Defendant was wearing
a bathrobe. He had no shirt on, and Berryhill could not tell if he was wearing shorts. They
spoke with defendant, who “appeared intoxicated; slow, sluggish, groggy.” They asked if they
could come in, and defendant said that they could not. They told defendant that they needed to
speak with him, and defendant stepped outside. Defendant responded to the officers’ questions
“[v]aguely.” He told the officers who he was and acknowledged knowing the complainant, but
he did not say “much above and beyond that.” When asked about the e-mails the complainant
had received, defendant “appeared confused” and “[d]idn’t answer either yes or no.” Defendant
stated that he had been drinking and had just woken up. Berryhill could observe no physical
injuries but noted that defendant’s bathrobe had long sleeves.
¶6 An ambulance had also been dispatched to the scene. While the officers were speaking
with defendant, Foy received a text message containing the picture defendant had sent to his
ex-girlfriend. The image showed the “crotch area” of a person wearing jeans sitting in what
appeared to be water with a large knife on his lap. Foy showed defendant the image and asked
if he had sent it. Defendant would not answer “yes or no” and seemed confused. They told
defendant that they wanted to get him checked out because “he just wasn’t acting
appropriately.” Defendant was not wearing jeans when the officers spoke with him, and he did
not appear wet. They took defendant to the ambulance. The officers were “[c]oncerned that
possibly there might be someone hurt inside the house.” They thought that possibly the subject
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in the picture was not defendant. Berryhill added, “We [were] not really sure what’s—has gone
on in this house.”
¶7 Accordingly, they decided to enter the house “[t]o see if there was a person that’s still
sitting in a bathtub with a knife in their lap.” They “weren’t sure what exactly was going on.”
Berryhill explained that defendant “was not being very forthcoming as far as that he had sent
these images or even that it was him.” The officers had “no intent to look for any sort of
contraband.” They did not look in any drawers or cabinets but looked merely “in rooms for
human beings.” They quickly checked the first floor and then Berryhill went downstairs to the
basement. Berryhill noted a light shining through a partially open door. He opened the door
fully and observed marijuana plants growing out of buckets. Berryhill went back upstairs and
told Foy what he had found. They then checked the rest of the residence for people. They heard
a toilet flush, and a man came out of a bathroom (the man is a codefendant who is not involved
in this appeal). They placed him under arrest. After completing their sweep of the house, they
secured it and sought a warrant.
¶8 On cross-examination by counsel for the codefendant, Berryhill testified that his dispatch
to defendant’s residence would not have terminated when they secured defendant in the
ambulance regardless of whether he had discovered the cannabis. He explained that the fact
that they could not identify the person in the photograph with the knife on his lap, along with
defendant’s evasiveness, raised a concern that someone else might be in need of assistance in
the house. Berryhill acknowledged that ambulance personnel rolled defendant’s sleeve up,
which revealed injuries to defendant’s arm. He further agreed that when he first made contact
with defendant, defendant was not wearing jeans and was not wet. Defendant told Berryhill
that he had just woken up. Berryhill testified that no one had told him that someone else might
be in the house. In fact, defendant had stated that there was no one else in the house. However,
Berryhill explained, he was not sure whether to believe defendant, as defendant had appeared
evasive in response to their questions. Berryhill acknowledged that he entered the house after
he had identified defendant as the person they were looking for and observed in the ambulance
injuries on defendant that were consistent with an attempted suicide.
¶9 On cross-examination by defendant’s attorney, Berryhill acknowledged that, although he
had not previously been to defendant’s residence, he had been to other similar residences in
the housing complex, so he was familiar with their layout. He denied knowing that bathrooms
were on the second floor. When dispatch first communicated with Berryhill, it was related that
there had been a report of a suicidal individual named Dmitry called in by the subject’s ex-
girlfriend, who had received an e-mail from the subject threatening suicide. The e-mail was in
Russian. The message from dispatch did not express any concerns about anybody besides
defendant. Foy was texted a photograph of defendant. When they first encountered defendant
at the front door, Foy did most of the talking. Defendant was calm, albeit sluggish and
apparently intoxicated. He was not aggressive, made no furtive movements, and did not
attempt to evade or disengage from the officers. Based on the photograph that had been texted
to Foy, the officers determined that the man at the door was the subject of the suicide threat.
Defendant denied their request to enter the residence. They asked defendant to step out of the
house, and he complied. They spoke with defendant for about 5 to 10 minutes before they
brought him to the ambulance. Berryhill testified that defendant’s behavior was not unusual,
“[o]ther than he was unable to explain why these images were sent; whether he even sent them;
or anything like that; you know, there was offered no explanation for what we were there to
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talk to him about.” They heard no sounds coming from the house and did not speak with any
of the neighbors. A couple other officers arrived while Berryhill and Foy spoke with defendant.
¶ 10 When asked whether he was concerned that someone else might be in need of assistance
inside the house, Berryhill stated:
“During our conversations with him; and the fact that he was not making
admissions to that—to even sending those emails; we weren’t sure exactly what was
going on at that point; whether he was the person depicted in that or not. And we started
having concerns that maybe there is someone else in the house at that point.”
At the ambulance, Berryhill observed several small cuts on defendant’s left forearm, which he
described as “superficial.” There was little or no bleeding. Berryhill agreed that this confirmed
that defendant was the subject of the call made by defendant’s ex-girlfriend.
¶ 11 Berryhill agreed that they did not rush into the house after leaving defendant at the
ambulance. When asked whether he had any information that would have led him to believe
that there was someone else in the house, Berryhill replied, “We had the photograph that we
weren’t sure was Dmitry.” They made a warrantless entry of the house. Defendant was not
under arrest. Berryhill testified that he was not concerned about the knife. He agreed that
defendant’s residence was similar to other residences in the complex in which he had
previously been. Berryhill stated that he did not know where the bathtub was in these units, as
he had primarily been in the front living area in the past.
¶ 12 On recross by the codefendant’s attorney, Berryhill testified that defendant was able to
identify himself when Berryhill first made contact with him. Before Berryhill entered
defendant’s residence, he was aware of the content of the e-mail threatening suicide. However,
though it came from defendant’s e-mail account, defendant did not acknowledge sending it
and in fact denied doing so; hence, Berryhill was not certain who actually sent it. When
Berryhill first entered defendant’s residence, he passed through the living room, entered the
kitchen, and then went downstairs to the basement. He acknowledged that there was a staircase
leading to the second floor in the living room and that he bypassed it to go to the kitchen. The
only bathtub in the residence was on the second floor. Berryhill agreed that he was looking for
someone sitting in a bathtub.
¶ 13 The parties stipulated that the information garnered by Berryhill and Foy provided the sole
basis for the warrant pursuant to which the cannabis plants were seized. They further stipulated
that the plants were, in fact, seized.
¶ 14 Foy testified next for the State. She stated that, on June 27, 2017, she was dispatched to a
location regarding a suicidal subject. She was in uniform and driving a squad car. She had been
informed that the ex-girlfriend of the subject had received an e-mail in Russian stating that he
was going to harm himself. Berryhill arrived at approximately the same time Foy did. Foy had
been provided with a picture of defendant. Dispatch also sent Foy a copy of the actual e-mail
received by defendant’s ex-girlfriend, which included a photograph of the “torso” or “crotch
area” of a person, with a hand and a large knife visible. The person was wearing jeans, which
appeared to be wet. The person seemed to be sitting in a bathtub or in “[s]ome sort of water.”
¶ 15 Foy and Berryhill approached defendant’s door and knocked. Defendant answered. He was
wearing a bathrobe, which was dry. Defendant “appeared to be extremely intoxicated, very
evasive, [and] did not want to give a lot of information.” Foy asked if they could come in, and
defendant declined. She told defendant why they were there. Foy asked defendant about the
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photograph, and “he did not confirm nor deny but really didn’t have much to say to us.” She
could not tell if defendant had been injured. Eventually, they called the ambulance, which had
been “staging” down the street, forward. They took defendant to the ambulance.
¶ 16 At that point, Foy testified, they “decided to go in and do a protective sweep of the house
just to make sure there was nobody hurt inside because we could not confirm that he was the
one in the picture.” Foy testified that they were concerned that “there could be someone hurt
inside.” Her concerns were based on the photograph of the person with the knife. They entered
and proceeded through the living area to the kitchen. Foy remained in the kitchen while two
other officers went downstairs. Subsequently, she and Berryhill went upstairs, where they
encountered and arrested the codefendant, after which she checked the rest of the upstairs.
¶ 17 On cross-examination by defendant’s attorney, Foy testified that, although they were aware
that the e-mail threatening suicide came from defendant’s e-mail address, they were not certain
that defendant had sent it. She acknowledged that dispatch related to her that defendant was
the suicidal individual. As she approached defendant’s door, she did not hear any “yelling or
screaming from the house.” When defendant answered the door, Foy was able to identify him
from his driver’s license photograph. After defendant stepped out of his residence, they spoke
with him for about four or five minutes on his front porch. Foy agreed that they did not rush
into the residence as soon as defendant was taken to the ambulance. They entered the house to
determine if there were any additional victims.
¶ 18 On cross-examination by the codefendant’s counsel, Foy reiterated that they did not know
whether defendant was the person in the photograph with the knife. She was asked, “And
because you did not know, you decided it was a good idea to just check the house?” Foy replied,
“For additional victims, absolutely.”
¶ 19 The trial court then ruled on defendants’ motion to suppress the evidence. The court began
its discussion by reviewing the testimony on why the officers entered defendant’s residence. It
first noted that the police “had no suspicion” and were not investigating a crime when they
came to defendant’s residence. Rather, they were there to check on the well-being of a suicidal
person. They knocked and defendant answered the door in “a drunken state.” Defendant did
not provide the officers with any information regarding the issue for which they were
dispatched. The trial court found, “Since they were not getting too many answers from the
defendant, they had no idea if there was anyone else left in the house.” The trial court
continued, “They didn’t know what had happened in the house, what precipitated their call
there.” Moreover, “They were not clear other than having that email and the defendant’s
suicidal communication including the picture with the knife.” The trial court further observed
that, after defendant was transported away in the ambulance, the officers had to secure the
house. In the course of so doing, they needed to make sure that no one else, including possibly
children, was left inside. Thus, the officers were acting “in a reasonable way to discharge their
community-caretaking duties.”
¶ 20 The trial court then found that, in the course of checking the house, the officers discovered
the cannabis in plain view. The trial court also found that the officers were acting in good-faith
reliance on the warrant when they seized the cannabis plants. It then denied defendant’s motion
to suppress. Defendant filed a motion to reconsider. The trial court denied this motion,
explaining that the officers were acting in furtherance of their community-caretaking duties.
They needed to ascertain whether there were additional victims in the house. The court
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reiterated its concern that there could have been children in the house and that the officers
needed to see if this were so prior to securing the residence.
¶ 21 Thereafter, the trial court held a bench trial on the stipulated evidence. The parties also
agreed to a three-year sentence of imprisonment should defendant be convicted. The State
recited the evidence to which the parties stipulated. It then nol-prossed count VII (possession
of a controlled substance). The trial court convicted defendant of count II (possession of
cannabis) and sentenced him to the three-year sentence previously agreed upon. The trial court
denied defendant’s motion for a new trial, and this appeal followed.
¶ 22 II. ANALYSIS
¶ 23 On appeal, defendant raises a number of arguments. As a threshold issue, he argues that
the police officers’ warrantless entry into his home was not justified by the community-
caretaking doctrine or the emergency-aid doctrine. He asserts that there were no exigent
circumstances and that there was no objective indication that either a crime had been
committed or an emergency existed. Predicated on the success of this initial argument,
defendant goes on to argue that, since the officers were not in a place in which they were
entitled to be when they observed the cannabis plants, the plain-view doctrine is inapplicable
and they could not have been acting in good-faith reliance on the warrant they obtained based
on their illegal entry.
¶ 24 When reviewing a trial court’s decision on a motion to suppress evidence, a court of review
is presented with a mixed question of law and fact. People v. McQuown, 407 Ill. App. 3d 1138,
1143 (2011). Questions of historical fact are reviewed using the manifest-weight-of-the-
evidence standard. Id. As such, they will be reversed only if an opposite conclusion is clearly
apparent. People v. Colquitt, 2013 IL App (1st) 121138, ¶ 28. However, the ultimate question
of whether suppression was warranted is reviewed de novo. Id. ¶ 29. With these standards in
mind, we turn to defendant’s arguments.
¶ 25 A. THE COMMUNITY-CARETAKING DOCTRINE
¶ 26 The trial court relied on the community-caretaking doctrine in finding that the officers’
warrantless entry into defendant’s residence was justified. Our supreme court has explained
that “community caretaking refers to a capacity in which the police act when they are
performing some task unrelated to the investigation of crime, such as helping children find
their parents, mediating noise disputes, responding to calls about missing persons or sick
neighbors, or helping inebriates find their way home.” People v. McDonough, 239 Ill. 2d 260,
269 (2010). Thus, for the doctrine to apply, two conditions must be met. First, the officers’
actions, viewed objectively, must involve “some function other than the investigation of a
crime.” Id. at 272. Second, a search or seizure resulting from such actions must be reasonable,
measured objectively, in light of the public-safety function the officers are engaged in. Id.Reasonableness is assessed with reference to the totality of the circumstances. Id. In
determining whether a search or seizure is justified pursuant to the community-caretaking
doctrine, a “court must balance a citizen’s interest in going about his or her business free from
police interference against the public’s interest in having police officers perform services in
addition to strictly law enforcement.” Id. Here, we have little difficulty concluding that the
officers’ actions fell within the ambit of the community-caretaking doctrine.
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¶ 27 Initially, we must consider the trial court’s findings of historical fact, to which we owe
deference. McQuown, 407 Ill. App. 3d at 1143. While this is a relatively straightforward case
and the facts are largely undisputed, we note several findings that have significant relevance
here. The trial court found that the police did not intend to “investigate either a crime or to
merely snoop around on suspicion that there may be a crime.” When defendant answered the
door, he was intoxicated. Further, “[h]e was not providing information regarding the reason
why [the police] were called there.” Since they were not getting any information from
defendant, “they had no idea if anyone else [was] left in the house” and “[t]hey did not know
if there was a victim in the house.” We cannot say, and defendant does not contend, that these
findings are against the manifest weight of the evidence.
¶ 28 Given the trial court’s findings, the first prong of the community-caretaking analysis is
satisfied—the officers were not investigating a crime. See McDonough, 239 Ill. 2d at 272. The
question remains as to whether their conduct was reasonable under the circumstances. We hold
that it was. A suicide threat was communicated from defendant’s e-mail account. While the
message purported to be from defendant, defendant was evasive when asked about the e-mail.
A picture of the torso of an individual holding a large knife accompanied the e-mail. The
identity of the person in the e-mail was not certain. The individual in the photograph was
wearing jeans and was wet. Defendant was wearing a robe and was dry. When shown the image
and asked whether it was him, defendant would not answer yes or no. We also note the limited
scope of the officers’ search. They swept the premises looking for other individuals. They did
not look in drawers or cabinets, where only small objects could be concealed. Given the
information available to the officers and the limited nature of the search, we hold that the
officers’ conduct was objectively reasonable.
¶ 29 In arguing for a contrary result, defendant cites People v. Mikrut, 371 Ill. App. 3d 1148(2007). In that case, a woman who had been staying in the defendant’s home asked the police
for assistance in retrieving her personal belongings from the home. She stated that she was
afraid of the defendant. She told the police that the defendant owned guns, and the police
determined that the defendant did not have a valid FOID card. Officers accompanied the
woman to the defendant’s home. The defendant told the officers that he did not want them in
his home. The officers explained why they were there, and the defendant went to the living
room, where he remained with two officers. A third officer accompanied the woman to a
bedroom to retrieve her possessions. While in the bedroom, the woman opened a closet, and
the officer observed a rifle. The defendant was arrested. The defendant moved to suppress the
firearm. The trial court granted the motion because the defendant had denied the officers
permission to enter and, once the defendant was secured in the living room, there was no reason
for an officer to accompany the woman to the bedroom. Id. at 1150.
¶ 30 On appeal, the State argued that the community-caretaking doctrine justified the officers’
entry into the defendant’s home. Id. at 1152. The reviewing court agreed that, “in the exercise
of their community caretaking function, the police were justified in doing what was necessary
to prevent violence between [the defendant] and [the woman].” Id. at 1153. However, it further
held that this “did not give the police a general warrant to intrude wherever they wanted.” Id.
Rather, “the intrusion had to be strictly circumscribed by the exigencies justifying its
initiation.” Id. That is, “[w]hen officers have accomplished their caretaking purpose, they may
not continue to expand the scope of an intrusion without additional justification.” Id.
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¶ 31 Defendant argues that, in this case, the officers had accomplished their caretaking purpose
when they identified defendant and brought him to the ambulance, at which time they noted
the superficial cuts on his arm. However, in Mikrut, it was undeniably clear that the officers’
purpose had been accomplished when they secured the defendant in the living room. In this
case, ambiguity persisted after defendant was taken to the ambulance. A suicide threat
accompanied by a photograph was transmitted to defendant’s ex-girlfriend from defendant’s
e-mail account. Defendant would neither confirm nor deny that he sent the e-mail or that he
was the person in the photograph. Thus, Mikrut is distinguishable because there the police
knew that they had accomplished their purpose; conversely, here, that was not clear.
¶ 32 Defendant also relies on People v. Hand, 408 Ill. App. 3d 695 (2011), where the
defendant’s husband expressed his concerns to a police officer about his wife’s mental health
and the safety of their children, who were in her company. The officer knocked on the
defendant’s front door and received no answer. The officer got a key from the husband and
attempted to enter. The defendant responded by swinging a baseball bat at the officer, but he
was eventually able to enter and subdue the defendant. Id. at 696-97. The Hand court
determined that the officer’s entry was justified by the community-caretaking doctrine, as the
officer was attempting to check on the children’s well-being. Id. at 702-03. Similarly, in People
v. Woods, 2019 IL App (5th) 180336, ¶ 34, also cited by defendant, a witness’s complaint of a
minor left unattended in a house was held to justify an entry by the police pursuant to the
community-caretaking doctrine.
¶ 33 Defendant points out that, in both Hand and Woods, there was objective evidence that
children were inside the houses who were potentially in peril. Conversely here, defendant
argues, there was no indication that anyone else was in jeopardy. Defendant asserts that he was
home, he answered the door, the police could identify him from his driver’s license photograph,
and he had cut marks on his arm. This, defendant contends, should have terminated the officers’
well-being check. As we read Hand and Woods, the differences between them and the instant
case are of degree rather than kind. In those cases, witnesses told the police that children were
inside the homes. In this case, the officers were in possession of a photograph of a subject
holding a knife, who remained unidentified, and defendant refused to identify the subject and
was generally evasive. Though this evidence was perhaps not as specific as the evidence in
Hand and Woods, we nevertheless hold it sufficient to raise a reasonable belief that someone
else in the residence might have been in need of assistance.
¶ 34 Indeed, absolute certitude is not required before a police officer is authorized to conduct a
search under circumstances such as those existing in this case. Notably, the law is well settled
that probable cause does not require a showing that it is more likely than not that a crime
occurred. See, e.g., People v. Hopkins, 235 Ill. 2d 453, 472 (2009). Thus, we hold that, where,
as here, the police have a reasonable basis to believe that someone else in a residence might be
in need of assistance, the community-caretaking doctrine authorizes the limited sort of
intrusion that was made in this case.
¶ 35 Moreover, although the police here were aware of some facts that weighed against an
inference that someone else might have needed assistance inside the residence, that does not
compel a different result. In People v. Jones, 215 Ill. 2d 261, 278 (2005), our supreme court
found that an officer had probable cause to believe that an object was drug paraphernalia even
though his belief “was not absolutely guaranteed to be correct.” The court explained,
“ ‘Because many situations which confront officers in the course of executing their duties are
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more or less ambiguous, room must be allowed for some mistakes on their part.’ ” Id. (quoting
Brinegar v. United States, 338 U.S. 160, 176 (1949)). Here, though some facts weighed against
inferring that someone else in the home was in need of assistance, the police still had the
photograph of the unidentified subject dressed in a manner different from defendant. Thus, the
situation was ambiguous. Under such circumstances, it was entirely reasonable to conduct a
limited sweep of the residence to ascertain if someone else was in need of assistance.
¶ 36 We find unpersuasive defendant’s attempt to characterize the officers’ actions as being
based on a mere hunch. A mere hunch is, of course, insufficient to justify an intrusion into an
interest protected by the fourth amendment. People v. Slaymaker, 2015 IL App (2d) 130528,
¶ 14. However, here, the picture of the unidentified subject holding a knife, along with
defendant’s refusal to admit that he was that subject, provided the officers with an articulable
basis for their concern that someone within the residence might have needed assistance.
¶ 37 In sum, we conclude that the officers’ entry into defendant’s home to check for other
occupants in need of assistance was reasonable under the circumstances and did not offend the
fourth amendment.
¶ 38 B. OTHER ISSUES
¶ 39 As we have determined that the officers’ entry into defendant’s home and limited search
therein were lawful in accordance with the community-caretaking doctrine, we also determine
that they were entitled to be in defendant’s residence when they observed the cannabis plants
in plain view. Moreover, the trial court also found that the officers were acting in good-faith
reliance on a warrant, which they obtained after their initial entry, when they seized the
cannabis plants. As we have determined that the officers’ actions were lawful, the question of
good faith is moot. Finally, as we have found that the community-caretaking doctrine justified
the officers’ actions, we need not consider the applicability of the emergency-aid exception to
the warrant requirement.
¶ 40 III. CONCLUSION
¶ 41 In light of the foregoing, the judgment of the circuit court of Lake County is affirmed.
¶ 42 Affirmed.
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