NO. 4-02-0748

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JUSTICE McCULLOUGH delivered the opinion of the court:

Following a stipulated bench trial on August 12, 2002, the trial court found defendant, Lori A. Johns, guilty of possession of a controlled substance (less than 15 grams of a substancecontaining cocaine) (720 ILCS 570/402(c) (West 2000)). The courtsentenced her to 24 months' probation. Defendant appeals,arguing that the trial court erred by denying her motion tosuppress evidence. We reverse.

On April 30, 2002, defendant filed a motion to suppressevidence. Defendant referenced a judgment order for probationentered on May 14, 2001. The order stated "[d]efendant has beenfound guilty of the offenses of DRIVING UNDER THE INFLUENCE OFALCOHOL [(DUI)] and DRIVING WHILE REVOKED [(DWR)], class Amisdemeanors." The order provided that defendant shall "[s]ubmitto warrantless searches of [her] person, property, residence,motor vehicle and effects at the request of [her] probationofficer or law enforcement authorities and consent to the use ofanything seized as evidence in court proceedings." On January23, 2002, law enforcement authorities conducted "a random probation check" of defendant's residence. Defendant argued that "thesearch [was] beyond the scope authorized *** [and] there was noreasonable suspicion to conduct a search."

At hearing, the parties stipulated to the testimonyoffered at the preliminary hearing. On January 23, 2002, Marshall police officer Jeff Sanders conducted "a random probationcheck" of defendant's residence. Sanders testified that it wasnot "a direct order" but that the probation office had asked lawenforcement authorities to "randomly check [probationers]." Defendant was not present in the home. Sanders testified thatdefendant's son "was there and gave us permission to go ahead andcome in and conduct a search of the residence as part of herprobation." Sanders believed the boy to be 16 or 17 years old. Sanders found three used pipes in a dresser drawer located indefendant's bedroom. The pipes were confiscated and latertested. A single pipe was found to contain less than 15 grams ofa substance containing cocaine. As a result, the State chargeddefendant with possession of a controlled substance.

The trial court ruled that "the search falls squarelywithin the 'special needs' exception to the usual warrant andprobable cause requirements." The court denied defendant'smotion to suppress the evidence. On August 12, 2002, the courtconducted a stipulated bench trial. The court found defendantguilty of possession of a controlled substance and sentenced heras stated. This appeal followed.

Defendant argues the trial court erred in denying hermotion to suppress. Specifically, defendant argues "the searchwas not based upon suspicion or evidence of illegal activity." We accord deference to a trial court's factual findings and willreverse those findings only if they are against the manifestweight of the evidence; however, we review de novo the ultimatereasonableness of a warrantless search. People v. Sorenson, 196Ill. 2d 425, 431, 752 N.E.2d 1078, 1083 (2001).

Initially, the State argues the trial court did not err"since the police had obtained consent to search from the defendant's son," and "the motion to suppress should be affirmed onthis basis alone." Although the State did not make this argumentin the trial court, the supreme court has held it "unfair" tofind the State has waived an argument not made in the trial courtwhen the trial court denies a defendant's motion to suppress andthe defendant appeals. People v. Janis, 139 Ill. 2d 300, 319,565 N.E.2d 633, 642 (1990).

We note the State's sole argument at hearing was inreference to United States v. Knights, 534 U.S. 112, 151 L. Ed.2d 497, 122 S. Ct. 587 (2001). The State "concede[d]" that theSupreme Court "ruled against our position." The State asked thatthe trial court "rebalance the interests," albeit noting the soledistinction between the cases: "Defendant in the Knights casewas on probation for a drug offense, and the distinction here,this [d]efendant obviously is on probation for a DUI *** not muchof a distinction."

"It is *** well settled that one of the specificallyestablished exceptions to the requirements of both a warrant andprobable cause is a search that is conducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed.2d 854, 858, 93 S. Ct. 2041, 2043-44 (1973). This consent may beobtained not only from the individual whose property is searched,but also from a third party who possesses common authority overthe premises. People v. Bull, 185 Ill. 2d 179, 197, 705 N.E.2d824, 833 (1998). Such authority is based on mutual use of theproperty by persons generally having joint access or control formost purposes. The burden of establishing common authority restson the government. Bull, 185 Ill. 2d at 197, 705 N.E.2d at 833. In the present case, the State failed to establish that defendant's son possessed common authority over a dresser drawerlocated in his parents' bedroom. We do not accept, withoutevidence, that a child in his teens could give a valid consent tolaw enforcement authorities to conduct a search of a dresserdrawer located in his parents' bedroom. See 3 W. LaFave, Search& Seizure