People v. Turner , 122 Ill. App. 3d 81 ( 1984 )

PRESIDING JUSTICE HARTMAN,

dissenting:

I respectfully dissent. In my view, the record and the relevant law compels the conclusion that the warrantless arrest of Turner in his home violated his constitutional rights. Under Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, in the absence of strictly defined exigent circumstances, warrantless and non-consensual entry into a suspect’s home to effect his arrest violates the fourth amendment. No exigent circumstances were present here, as there was no “hot pursuit” of defendant and, in fact, two days had elapsed between the informant’s accusation of defendant and the arrest, more than sufficient time to secure a warrant. See People v. Johnson (1981), 99 Ill. App. 3d 863, 866, 425 N.E.2d 1215.

Furthermore, the police entry into defendant’s home was not the result of a valid, voluntary consent. The arresting officers told defendant’s mother that they “had to search” the home, whether “willingly” or under a “court order.” Her silent acquiescence to their entry, under the circumstances, appears more a submission to authority than a voluntary consent. Although defendant bears the burden of establishing the illegality of an arrest for purposes of suppressing evidence (People v. Petersen (1982), 110 Ill. App. 3d 647, 654, 442 N.E.2d 941), such burden must be viewed in the light of the caveat in Payton that warrantless searches and seizures within a home are “presumptively unreasonable” (445 U.S. 573, 586, 63 L. Ed. 2d 639, 651, 100 S. Ct. 1371, 1380). Where consent to enter a home is at issue, the burden is on the State to show by a preponderance of evidence that the consent was voluntarily given. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 222, 36 L. Ed. 2d 854, 860, 93 S. Ct. 2041, 2045; People v. Posey (1981), 99 Ill. App. 3d 943, 947, 426 N.E.2d 209.) This the State failed to do.

Accordingly, I would reverse and remand the cause for a new trial, or, alternatively, for a hearing to determine whether the evidence used against defendant was tainted by the illegal arrest.