NO. 5-02-0636

JUSTICE HOPKINS delivered the opinion of the court:

Following a stipulated bench trial, the defendant, Scott A. Haycraft, was convictedof criminal drug conspiracy and unlawful manufacture of a controlled substance. The trialcourt sentenced the defendant to concurrent prison terms of 19 years for each conviction.

On appeal, the defendant argues that the search of his home was unconstitutional, thathe was denied due process during his stipulated bench trial, that the State failed to prove hepossessed more than 900 grams of methamphetamine, that he was denied the effectiveassistance of counsel, that his conviction for criminal drug conspiracy must be reversed, andthat he was entitled to credit toward fines for the time he spent in custody prior tosentencing.

We affirm in part, vacate in part, and remand.

On August 24, 2001, the defendant was charged by an indictment with criminal drugconspiracy (720 ILCS 570/405.1 (West 2000)), unlawful manufacture of a controlledsubstance (720 ILCS 570/401(a)(6.5)(D) (West 2000)), unlawful possession with the intentto deliver a controlled substance (720 ILCS 570/401(a)(6.5)(D) (West 2000)), and unlawfulpossession of a controlled substance (720 ILCS 570/402(a)(6.5)(D) (West 2000)).

On April 8, 2002, the defendant filed his motion to suppress and alleged thatmembers of the drug task force had unlawfully entered his home without a warrant andwithout probable cause. The defendant requested that, as a result of the illegal search andseizure, the contraband illegally seized and his resulting incriminating statement besuppressed.

On May 2, 2002, at the hearing on the motion to suppress, Shannon Champion, seniorparole agent for the Illinois Department of Corrections, testified that she was assigned tosupervise the defendant's parole. In the defendant's parole agreement, which the defendantsigned on November 2, 2000, the defendant agreed to permit an agent of the Department ofCorrections to visit him at his home or "elsewhere as [the agent] directs."

Agent Champion testified that the defendant tested positive for amphetamines onDecember 8, 2000; on May 12, 2001; and on June 2, 2001. At 11 p.m. on July 13, 2001,Agent Champion went to the defendant's home. Before Agent Champion's visit to thedefendant's home that evening, other parolees whom Agent Champion supervised had toldher that the defendant had been cooking methamphetamine. Nothing indicated, however,that the defendant would be cooking methamphetamine in his home at the time of her visit.

Officer Rick Robbins and the drug task force, along with Jim Ferry and Ron Howard,Agent Champion's fellow parole agents, waited a block away while Agent Championproceeded to the home. Agent Champion requested their assistance because she had littleexperience with methamphetamine but knew that manufacturing methamphetamine couldbe very dangerous.

Agent Champion testified that upon arriving at the defendant's home, she smelled an"unbelievable" chemical smell that signaled to her that methamphetamine was cooking. Agent Champion stopped the defendant's son from running to the door of the home, theagent stating that the chemical smell was too strong. Agent Champion hit her radio to signalthe awaiting officers to come to the home. The defendant met Agent Champion at the door. Agent Champion could see a gentleman in the kitchen.

Agent Champion testified that she "knew that [the defendant] was cooking" andasked the defendant who else was in the house. Upon stepping into the house, AgentChampion entered the kitchen and observed a semiclear liquid cooking in pans on the stove,smelled the odor emanating from the pans, and witnessed fans blowing steam out thewindow. The other officers arrived at the defendant's home, and Agent Champion and adeputy walked through the house to a bedroom and told the defendant's pregnant wife to exitthe home to avoid danger. Agent Champion arrested the defendant for his parole violation.

Montgomery County Deputy Rick Furlong, from the drug task force, testified that hehad received informal training in drug-related investigations. On July 13, 2001, DeputyFurlong stayed a block and a half down the street from the defendant's home while AgentChampion proceeded to the home. After Agent Champion signaled that she neededassistance, he proceeded to the defendant's home.

Deputy Furlong testified that methamphetamine laboratories involve anhydrousammonia; lithium; pseudoephedrine; Coleman fuel, ether, starting fluid, glass jars, hydrogengenerators, or gas generators; and jars with tubes coming out of them. Deputy Furlongexplained that methamphetamine laboratories pose a significant hazard to persons nearbyand that his first concern is for the safety of those present.

Deputy Furlong testified that prior to searching the defendant's home, Deputy Furlonghad observed lighter fluid and Coleman fuel. Upon stepping into the defendant's home,Deputy Furlong entered an enclosed porch adjacent to the kitchen. Deputy Furlong smelledthe chemical odor, and upon entering the kitchen, he observed pots on the stove with a clearliquid that was steaming and a fan blowing steam out the window. Deputy Furlong notifiedAgent Champion that it was a methamphetamine laboratory and that it was necessary to exitthe premises for safety reasons. Deputy Furlong accompanied Agent Champion through thehome for the safety of persons in the home. When Deputy Furlong arrived at the bedroom,he observed a pan in the bedroom and expressed urgency to exit the home for safety reasons.

Heather Haycraft, the defendant's wife, testified that on July 13, 2001, she waspregnant, that Agent Champion woke her in the bedroom of the defendant's home, and thatupon leaving the home, she did not smell a chemical odor. Heather did not recall emptybottles of lighter fluid or a hot plate and a fan in the bedroom.

Following the hearing, the court denied the motion to suppress.

On May 13, 2002, the defendant waived his right to a jury trial, signing a waiver-of-jury-trial form. On May 23, 2002, the court proceeded with a stipulated bench trial andstated, "[I]t is likely that the court will find the defendant guilty." The court also stated: "So on the one hand I am telling the [S]tate it's not 100 percent guaranteed, but yetalmost to the defendant I am saying it's 100 percent guaranteed that he will be foundguilty. So I will admonish [the defendant].

*** Now, we are going to go ahead *** with the stipulated bench trial. Itmeans it is very probable that you will be found guilty of it and have sentencinghearing set in about 6 weeks and then you will be given a prison sentence and thenyou are going to appeal the court's rulings.

*** [I]f we have the stipulated bench trial[,] it's almost certain you will befound guilty. *** And at the same time I turn to the [S]tate and say just because it'sa stipulated bench trial there is [sic] no breaks. You really have to prove it."

Throughout the proceeding, the trial court referenced that the proceeding was astipulated bench trial. The court explained to the defendant that he was waiving "thetraditional right to a trial, a trial where the [S]tate is required to present evidence in thecourtroom," but the court also stated, "The [S]tate has the burden *** even at the stipulatedbench trial [to prove the defendant] guilty beyond a reasonable doubt." The courtquestioned whether the defendant had been coerced, forced, or made promises "to get [him]to plead to the stipulated bench trial," and the defendant responded, "None other than theright to appeal."

Defense counsel moved to dismiss the charges and alleged that although the labreports indicated that methamphetamine was present in the substances that had been in thedefendant's possession, materials other than methamphetamine improperly increased theweight charged against the defendant. The trial court denied the motion.

The defendant and the State stipulated to the following facts: Agent Championconducted a home visit wherein the defendant was present and thereafter placed under arrest;during the search of the defendant's home, law enforcement agents found several containerscontaining a clear liquid and took samples of the liquid, which was later identified by aforensic chemist as methamphetamine; the samples did not cross-contaminate each other andwere not contaminated in any way; the aggregate weight of the liquid testing positive for thepresence of methamphetamine was more than 900 grams; in his written statement, thedefendant stated that he and Dale Cole were finishing a methamphetamine cook that DaleCole and Ryan Bess had started, that he drove Dale and Ryan to buy precursors for the cook,and that he helped with the end process of the cook; and the trial testimony of AgentChampion and Deputy Furlong would be consistent with their testimony at the motion-to-suppress hearing. The State also presented a videotape of police collecting substances fromthe defendant's kitchen and presented the defendant's written statement. The State dismissedthe charge of unlawful possession with intent to deliver a controlled substance.

The trial court found the defendant guilty of criminal drug conspiracy, unlawfulmanufacture of a controlled substance, and unlawful possession of a controlled substance.

On June 21, 2002, the defendant filed his motion for a new trial and argued that thetrial court improperly denied his motion to suppress and that the methamphetamine sampleswere contaminated by the police. The trial court denied the defendant's motion for a newtrial.

On July 22, 2002, the court sentenced the defendant to 19 years in prison for criminaldrug conspiracy and 19 years in prison for unlawful manufacture of a controlled substance,with the sentences to run concurrently. In addition, the trial court ordered the defendant topay a $3,000 mandatory drug assessment, a $100 street value fine, and a $50 forensic labfee. The trial court credited the defendant for 375 days served in custody.

At the sentencing hearing, the trial court explained that it was imposing the 19-yearsentences because the defendant's methamphetamine laboratory caused or threatened seriousharm, because the defendant's criminal history was substantial, and because the defendantthreatened to kill Agent Champion.

On August 16, 2002, the defendant filed a motion to reconsider his sentence. OnAugust 27, 2002, the trial court filed its amended judgment and sentence. On September 20,2002, the trial court denied the defendant's motion to reconsider, and the defendant filed histimely notice of appeal.

The defendant argues that the search of his home was unconstitutional because hisparole agreement did not give Agent Champion the authority to search his home without awarrant.

Generally, a circuit court's ruling on a motion to suppress evidence presents a mixedquestion of law and fact. People v. Thomas, 198 Ill. 2d 103, 108 (2001). We uphold thefactual findings of the circuit court unless they are against the manifest weight of theevidence. People v. Gherna, 203 Ill. 2d 165, 175 (2003). We review de novo whether thesuppression was appropriate under those facts. Gherna, 203 Ill. 2d at 175; People v.Sorenson, 196 Ill. 2d 425, 431 (2001). We note that when the State prevails on a motion tosuppress, it is unfair to find that it waived any argument that might have been raised insupport of the court's ruling in its favor. People v. Janis, 139 Ill. 2d 300, 319 (1990).

The fourth amendment to the United States Constitution guarantees the "right of thepeople to be secure in their persons, houses, papers, and effects, against unreasonablesearches and seizures." U.S. Const., amend. IV. The fourteenth amendment (U.S. Const.,amend. XIV) makes the fourth amendment applicable to the states. Elkins v. United States,364 U.S. 206, 213, 4 L. Ed. 2d 1669, 1675, 80 S. Ct. 1437, 1442 (1960). The fourthamendment provides the same level of protection as the search-and-seizure provision in theIllinois Constitution (Ill. Const. 1970, art. I,