{ "id": 5282080, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME FLAGG, Defendant-Appellant", "name_abbreviation": "People v. Flagg", "decision_date": "1991-08-21", "docket_number": "No. 5-90-0194", "first_page": "655", "last_page": "660", "citations": [ { "type": "official", "cite": "217 Ill. App. 3d 655" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "460 N.E.2d 125", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "121 Ill. App. 3d 1023", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3558888 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/1023-01" ] }, { "cite": "466 N.E.2d 1126", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 1039", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3633082 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/1039-01" ] }, { "cite": "527 N.E.2d 1367", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "174 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3515652 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/174/0001-01" ] }, { "cite": "450 N.E.2d 355", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 141", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3556671 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/0141-01" ] }, { "cite": "368 N.E.2d 1079", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "53 Ill. App. 3d 794", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3391560 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/53/0794-01" ] }, { "cite": "226 N.E.2d 33", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "37 Ill. 2d 197", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2863488 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/37/0197-01" ] }, { "cite": "391 U.S. 543", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767611 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/391/0543-01" ] }, { "cite": "425 N.E.2d 1215", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 863", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3099983 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0863-01" ] }, { "cite": "320 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "59 Ill. 2d 352", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2958938 ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0352-01" ] }, { "cite": "411 N.E.2d 1346", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. 2d 128", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474907 ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0128-01" ] }, { "cite": "131 Wis. 2d 41", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8675211 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/wis-2d/131/0041-01" ] }, { "cite": "483 U.S. 868", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 28251 ], "weight": 12, "pin_cites": [ { "page": "871" }, { "page": "715" }, { "page": "3167" }, { "page": "872" }, { "page": "717" }, { "page": "3168" }, { "page": "872" }, { "page": "717" }, { "page": "3168" } ], "opinion_index": 0, "case_paths": [ "/us/483/0868-01" ] } ], "analysis": { "cardinality": 641, "char_count": 12307, "ocr_confidence": 0.747, "pagerank": { "raw": 7.98574415474299e-08, "percentile": 0.4637015517120882 }, "sha256": "76cce3c2a841e21ecf9a30e97ca231df88912f7f4d33f1131796c21c3e124844", "simhash": "1:f8473e8b4bab3ed6", "word_count": 2120 }, "last_updated": "2023-07-14T18:40:18.082759+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME FLAGG, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOWERTON\ndelivered the opinion of the court:\nThe parole officer knocked on the door. With him were the Washington County sheriff, a deputy, and also his own brother, who was an agent.\nDefendant opened the door. The parole officer said, \u201cJerome, can I talk to you a minute?\u201d\n\u201cYeah,\u201d said defendant.\n\u201cWe got a call from a confidential source that you have some stolen guns and some stereo equipment, can I come in?\u201d\n\u201cYes,\u201d defendant replied.\nThe parole officer, his brother, the sheriff, and the deputy went inside the house. Defendant did not own this house in Ashley, Illinois; he had \u201cparoled\u201d there, living for a while with his girlfriend and her two children, but they had argued, and he had moved out. He was there that day, babysitting the children.\nThe parole officer immediately walked through the living room and into the kitchen with defendant, because the informant said the guns might be in the living room. The deputy stayed in the living room; the sheriff and the parole officer\u2019s brother followed them to the kitchen.\n\u201cJerome, we have a right to search this house,\u201d the parole officer said; then he told defendant that he was going to search the house, but would rather have defendant\u2019s permission.\n\u201cThe gun above the bed is not mine,\u201d defendant said.\nThe parole officer told his brother to check. The brother checked. The gun was there. Defendant was handcuffed and arrested.\nThe officers searched the house. After most of the search had been completed and the evidence seized, the parole officer gave defendant a consent-to-search form to sign. Defendant signed it.\nCharged with unlawful possession of the firearms found in the warrantless search, defendant moved to suppress the evidence. The circuit court refused, ruling that, based on the information supplied by the informant, the parole officer and the police had reason to investigate, and defendant had invited them in and had consented to the search. Defendant was convicted on two counts of unlawful possession of a weapon by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24\u2014 1.1) and appeals on four grounds. We need only address one: whether the search and seizure was prohibited by the fourth amendment to the United States Constitution. U.S. Const., amend. IV.\nThe State makes three attempts to protect the search and seizure from constitutional attack. It argues: (1) a parole officer has the right to search a parolee\u2019s house without a warrant if there are reasonable grounds; (2) defendant consented to the search; and (3) there was no search because the gun was in plain view.\nWe reverse and remand.\nThe State maintains that the parole officer had a right to visit defendant at his house and conduct a search without a warrant, arguing that defendant, as a parolee, does not have the same expectation of privacy as other citizens and is not entitled to the same degree of constitutional protection from searches and seizures. The State relies on Griffin v. Wisconsin (1987), 483 U.S. 868, 97 L. Ed. 2d 709, 107 S. Ct. 3164, which held that a probation officer may search a probationer\u2019s home without a warrant where there are reasonable grounds to do so under administrative rules authorizing such conduct. Griffin is distinguishable because Wisconsin\u2019s parole regulations expressly permit a warrantless search of a probationer\u2019s home. In Griffin, the Court focused on a Wisconsin Department of Social Services regulation that allowed a probation officer to search a probationer\u2019s home without a warrant \u201cas long as his supervisor approves and as long as there are \u2018reasonable grounds\u2019 to believe the presence of contraband.\u201d (Griffin, 483 U.S. at 871, 97 L. Ed. 2d at 715, 107 S. Ct at 3167.) The Court held that the State regulation satisfied the fourth amendment, because the information possessed by the officer satisfied Federal \u201creasonable grounds\u201d standards. In the case at bar, however, there is no such regulation. In Illinois, conditions of parole are governed by the Unified Code of Corrections. (Ill. Rev. Stat. 1989, ch. 38, par. 1001 \u2014 1\u20141 et seq.) Three sections are relevant here.\nSection 3 \u2014 3\u20147(b)(6) states:\n\u201c(b) The Board may in addition to other conditions require that the subject:\n* * *\n(6) permit the agent to visit him at his home or elsewhere to the extent necessary to discharge his duties.\u201d Ill. Rev. Stat. 1989, ch. 38, par. 1003-3-7(b)(6).\nSection 3 \u2014 3\u20147(c) states:\n\u201cThe conditions under which the parole *** is to be served shall be communicated to the person in writing prior to his release, and he shall sign the same before release.\u201d Ill. Rev. Stat. 1989, ch. 38, par. 1003-3-7(c).\nSection 3 \u2014 3\u20147(d) states:\n\u201c[T]he Prisoner Review Board may modify or enlarge the conditions of parole *****.\u201d (Ill. Rev. Stat. 1989, ch. 38, par. 10&3-3 \u2014 7(d).)\nDefendant\u2019s conditions of parole were given to him in writing and signed by him. These conditions did not contain permission to search his house without a warrant, and the Prisoner Review Board neither enlarged nor modified the conditions of defendant\u2019s parole to include the warrantless search of his house. The Prisoner Review Board could have imposed as a condition of parole that defendant permit a parole officer to visit him at his home \u201cto the extent necessary to discharge [the parole officer\u2019s] duties,\u201d but did not. Griffin, therefore, does not apply.\nWe then are presented with the question whether the warrantless search of defendant\u2019s house was prohibited by the fourth amendment. The Wisconsin Supreme Court in State v. Griffin (1986), 131 Wis. 2d 41, 388 N.W.2d 535, held that the fourth amendment did not bar a search of a probationer\u2019s house, a holding perhaps properly characterized as one more chunk of ice thrown into the gathering, rapidly moving, and deeply chilled current of cases that lap at freedom\u2019s bank; but the United States Supreme Court refused to allow itself to be pulled into that current. It stayed on the bank, pointing out that the Wisconsin analysis made new constitutional law, and instead based its own holding on the State regulation. As the Supreme Court stayed on shore, we likewise do, for we are not so intrepid as to jump to the iceflow eschewed by the Supreme Court. In our refusal, we note that all must concede that if defendant had not been on parole, this warrantless entry and search would have been dismissed out of hand. But merely because defendant is a parolee does not mean that he has forfeited all his constitutional rights. Griffin, 483 U.S. at 872, 97 L. Ed. 2d at 717, 107 S. Ct. at 3168.\nWe hold that the status of a parolee is insufficiently different from the status of an unconvicted citizen to warrant allowing the government to ignore the sanctity of hearth and home, intrude at will, and pry into the secrets therein. We are aware of no case from Runnymede, in 1215, to Ashley, Illinois, in 1991, that holds such a doctrine. Had there been such a case we are confident that Mr. Justice Scalia would have found it, cited it, and used it in Griffin instead of branding the proposition \u201ca new principle of law.\u201d Griffin, 483 U.S. at 872, 97 L. Ed. 2d at 717, 107 S. Ct. at 3168.\nThe State argues, secondly, that defendant consented to the search. We disagree. The fourth amendment and article I, section 6, of the Illinois Constitution (U.S. Const., amend. IV; Ill. Const. 1970, art. I, \u00a76) prohibit unreasonable searches and seizures. With few exceptions, warrantless searches are generally unreasonable and unconstitutional; one such exception is a search pursuant to valid consent. (See People v. Bayles (1980), 82 Ill. 2d 128, 411 N.E.2d 1346.) Consent is a question of fact for the trial court, and a reviewing court will not disturb that ruling unless it is clearly erroneous. (People v. DeMorrow (1974), 59 Ill. 2d 352, 320 N.E.2d 1.) We examine defendant\u2019s consent.\nHere, defendant answered the door of his girlfriend\u2019s house where he was babysitting, finding as he did, his parole officer, the parole officer\u2019s brother, and two uniformed policemen. The parole officer told defendant he had heard that defendant had some guns and some stolen stereo equipment and asked if he could come in. Once in the house, the parole officer told defendant that they had a right to search the house for guns and were going to search the house for guns, seeking defendant\u2019s permission, in effect, only as an unnecessary courtesy. Faced with that, the defendant replied, \u201cThe gun above the bed is not mine.\u201d At this point, the police searched the house.\nMore than mere acquiescence to a claim of lawful authority must be shown to establish voluntary consent. (People v. Johnson (1981), 99 Ill. App. 3d 863, 425 N.E.2d 1215, citing Bumper v. North Carolina (1968), 391 U.S. 543, 20 L. Ed. 2d 797, 88 S. Ct. 1788.) The search conducted here was done before consent was given. We have found no case \u2014 and we think none can be found \u2014 that permits a warrantless search to be ratified by signing a consent-to-search form after the search has, for the most part, been completed.\nFurthermore, it is axiomatic that consent must be voluntary. The State argues that telling defendant that they had a right to search and were going to search did not amount to coerced consent. The State relies on: People v. Magby (1967), 37 Ill. 2d 197, 226 N.E.2d 33, which held a consent valid where the police told defendant that if he did not permit the search, they would get a warrant; People v. Zynda (1977), 53 Ill. App. 3d 794, 368 N.E.2d 1079, which held a consent valid where police told defendant that things would go easier on him if he permitted the search; and People v. Holliday (1983), 115 Ill. App. 3d 141, 450 N.E.2d 355, which held a consent valid where the police told defendant that a judge was about to sign a search warrant. These cases have no application to the facts in the case at bar, because the search in this case was conducted before consent was given. The parole officer told defendant, in essence, that his consent did not matter, and gave defendant a consent form to sign only after the house had been searched, the evidence seized, and defendant placed in handcuffs and forced to sit at the kitchen table.\nThe State argues lastly that no search occurred because the the parole officer\u2019s brother saw the gun in plain view. The State argues that defendant had all but directed the parole officer\u2019s brother to the bedroom where the gun was found by pointing to the direction of the bedroom when he said, \u201cThe gun above the bed is not mine,\u201d and that the parole officer\u2019s brother merely looked into the bedroom, saw the gun, and seized it. We are unpersuaded. The parole officer testified that he directed his brother to go to the bedroom to see if a gun was there. This was done immediately after defendant said the gun was not his. Plain view, an exception to the warrant requirement (see People v. Hebel (1988), 174 Ill. App. 3d 1, 527 N.E.2d 1367), does not apply to these facts, because the view must take place from an area where the officer has a lawful right to be. (See People v. Testa (1984), 125 Ill. App. 3d 1039, 466 N.E.2d 1126.) Although here the parole officer\u2019s brother had a right to be in the house \u2014 since he arguably had been invited in \u2014 he moved at the direction of his brother to an area of the house where he had no permission to go, no lawful right to be, and it was from this place that he saw the gun. See People v. Freeman (1984), 121 Ill. App. 3d 1023, 460 N.E.2d 125.\nThe circuit court is reversed, and this cause is remanded to the circuit court for entry of an order suppressing the evidence and for a new trial.\nReversed and remanded.\nWELCH and HARRISON, JJ., concur.\nWe express no opinion whether this condition would carry with it the power to search or whether a search incident to such a condition would withstand the demands of the fourth amendment.", "type": "majority", "author": "JUSTICE HOWERTON" } ], "attorneys": [ "Daniel M. Kirwan and Stanley P. Stasiulis, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "William R. Pearcy, State\u2019s Attorney, of Nashville, and Raymond L. Beck, of Chicago (Kenneth R. Boyle and Stephen E. Norris, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME FLAGG, Defendant-Appellant.\nFifth District\nNo. 5 \u2014 90\u20140194\nOpinion filed August 21, 1991.\nDaniel M. Kirwan and Stanley P. Stasiulis, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nWilliam R. Pearcy, State\u2019s Attorney, of Nashville, and Raymond L. Beck, of Chicago (Kenneth R. Boyle and Stephen E. Norris, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0655-01", "first_page_order": 677, "last_page_order": 682 }