{ "id": 2642036, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. NICHOLAS A. POLITO, Defendant-Appellee", "name_abbreviation": "People v. Polito", "decision_date": "1976-09-24", "docket_number": "No. 62356", "first_page": "372", "last_page": "378", "citations": [ { "type": "official", "cite": "42 Ill. App. 3d 372" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "18 U.S.C. \u00a73109", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1948, "opinion_index": 0 }, { "cite": "415 U.S. 164", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172884 ], "weight": 3, "pin_cites": [ { "page": "171, n. 7" } ], "opinion_index": 0, "case_paths": [ "/us/415/0164-01" ] }, { "cite": "301 N.E.2d 118", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "13 Ill. App. 3d 620", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5344910 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/0620-01" ] }, { "cite": "249 N.E.2d 220", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "110 Ill. App. 2d 368", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1593983 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-2d/110/0368-01" ] }, { "cite": "357 U.S. 301", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6162465 ], "weight": 3, "pin_cites": [ { "page": "310" }, { "page": "1196" }, { "page": "1338" } ], "opinion_index": 0, "case_paths": [ "/us/357/0301-01" ] }, { "cite": "237 N.E.2d 193", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "94 Ill. App. 2d 421", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2479223 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/94/0421-01" ] }, { "cite": "21 A.L.R.Fed. 820", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "year": 1974, "opinion_index": 0 }, { "cite": "374 U.S. 23", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8495 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/us/374/0023-01" ] }, { "cite": "310 N.E.2d 755", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill. App. 3d 817", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2614147 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0817-01" ] } ], "analysis": { "cardinality": 769, "char_count": 13933, "ocr_confidence": 0.883, "pagerank": { "raw": 1.594777607322868e-07, "percentile": 0.6827274485887015 }, "sha256": "4a25d4e9bfa058aa64cc6bddbeedc90b8d4c36bf327c3363c1f9dab2d53df8bb", "simhash": "1:a2c698f429f53151", "word_count": 2245 }, "last_updated": "2023-07-14T15:00:19.600233+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. NICHOLAS A. POLITO, Defendant-Appellee." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE LORENZ\ndelivered the opinion of the court:\nDefendant was indicted for attempt (rape), rape, deviate sexual assault, and battery in violation of sections 8 \u2014 4, 11 \u2014 1, 11 \u2014 3 and 12 \u2014 3 of the Criminal Code. (Ill. Rev. Stat. 1969, ch. 38, pars. 8 \u2014 4, 11 \u2014 1, 11 \u2014 3, 12 \u2014 3.) Prior to trial, defendant filed a motion to suppress certain evidence alleging it was obtained through an unannounced forcible entry of private premises. The motion was sustained and the State now appeals, contending that exigent circumstances excused their method of entry.\nAt the hearing on the motion to suppress the following pertinent evidence was adduced:\nFor defendant\nLouis Cantone\nHe is a Chicago police officer. In August, 1969, he was on assignment with the Cook County State\u2019s Attorney\u2019s Office in charge of the investigation of defendant, a dentist. The complainant, defendant\u2019s receptionist, told him that on August 7 and 8, 1969, defendant had sexually molested her in an adjoining office. The alleged attacks occurred while defendant was supposedly extracting one of her teeth and she was unconscious having been drugged and gassed by defendant.\nIn order to obtain further evidence against defendant, Cantone requested the complainant remain in defendant\u2019s employ and submit to further dental work. She agreed. On August 14 she informed him that she had a dental appointment with defendant the following evening. Before she went to defendant\u2019s office, he gave her further instructions, and \u201ciridescent\u201d powder was applied to certain areas of her body.\nHe and seven other investigators positioned themselves in and around defendant\u2019s office building at 7227 West 127 Street, Palos Heights, on August 15,1969. Defendant arrived at about 6:30 p.m. Later that evening the complainant, while seated in defendant\u2019s office lit a cigarette, which was the pre-arranged signal, indicating she had just been given a pill preparatory to the gas anesthesia. Sometime thereafter, he and the other investigators entered the second floor of the building using a key left by the complainant under the door mat on the first floor landing. After all exits were secured, they proceeded to defendant\u2019s office. Finding no one in defendant\u2019s reception room, lab or workroom, they went to Paul Hauser\u2019s office which adjoined defendant\u2019s. Complainant previously had told him that defendant had sexually molested her in Hauser\u2019s office. He turned the knob very slowly, but the door did not open. Listening at the door he could hear soft music playing. Without knocking or announcing the officers\u2019 presence, Investigator Gehrke broke open the door with a sledge hammer, and they arrested defendant. The arrest took place between 10:15 and 10:45 p.m.\nAlthough he had a warrant for defendant\u2019s arrest based on complainant\u2019s prior allegations and had seen him 10 to 15 times prior to the arrest, he made no attempt to arrest defendant earlier. Nothing would have prevented him from doing so, however, he \u201cwanted to build a stronger case against him.\u201d Although aware of various items he intended to seize in defendant\u2019s office, he never attempted to obtain a search warrant.\nHarold McGrath\nHe was a Chicago police officer assigned as a photographer to the State\u2019s Attorney\u2019s Office. Prior to defendant\u2019s arrest on August 15,1969, he was in the vicinity of defendant\u2019s office building for 12 hours. At about 6:30 p.m., he observed defendant enter the building. Although he was aware of a warrant outstanding for defendant\u2019s arrest, he did not attempt to arrest him at that time. At approximately 10:15 p.m. he participated in defendant\u2019s arrest. Entry was effected by breaking open the door with a sledge hammer. None of the investigators knocked or announced their office before entering. Prior to breaking open the door, he did not hear calls for help or screams. Once inside he took photographs of the premises.\nNicholas Polito, on his own behalf\nHe was arrested in an office leased by Paul Hauser. Hauser had given him a key and permission to use the office in 1961. Occasionally, he used the office as a recovery room for his patients and he also stored medications and pop in Hauser\u2019s refrigerator. He gave complainant authority to let \u201cpatients\u201d into any of his offices, as well as Hauser\u2019s office, however, he never authorized her to allow anyone else to enter Hauser\u2019s office.\nAt the conclusion of defendant\u2019s testimony he sought to quash his arrest and suppress certain evidence, including the following physical evidence seized from the office where he was arrested:\n(1) one gas mask\n(2) one timer\n(3) one smock with the initials \u201cN.P.\u201d\n(4) photographs of the room and persons in the room including the\ndefendant and complainant\n(5) one box containing prophylactics\n(6) two white towels\n(7) observations made by police and photographs taken of defendant when a \u201cblack light\u201d was shined on him revealing the presence of phosphorescent powder\nHe argued that arresting officers unlawfully: (1) entered private premises to arrest him without first announcing their authority and purpose, and (2) utilized an arrest warrant as a subterfuge to search private premises without obtaining a search warrant \u2014 all in contravention of his constitutional rights. (U.S. Const., amend. IV.) The court granted defendant\u2019s motion to suppress evidence based on his first argument, citing People v. Stephens (1974), 18 Ill. App. 3d 817, 310 N.E.2d 755, as authority. On appeal the State admits the arresting officers made an unannounced forcible entry, however, they contend that exigent circumstances existed at the time of the arrest, excusing compliance with any announcement requirement. (Ker v. California (1963), 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726.) Therefore, the sole issue before us is whether exigent circumstances existed in the instant case.\nOpinion\nWe have reviewed the announcement requirement set forth in Ker and have found four recognized exceptions to the rule. Circumstances held to excuse compliance with the requirement exist when: (1) there is a possibility of destruction of evidence, (2) there is apprehension of physical peril, (3) there is a possibility of escape by defendant, or (4) compliance would be a useless gesture. (Annot., 21 A.L.R.Fed. 820 (1974) .) The State contends that two of these exceptions are applicable here. They also urge as exigent circumstances grounds which do not fit within the recognized exceptions above.\nThe State first contends that an unannounced forcible entry was required to preserve evidence from destruction. They argue that any delay caused by the arresting officers announcing their authority and purpose and then waiting an appropriate time for defendant\u2019s response, would allow defendant time to destroy certain evidence. In support of this contention they cite People v. Hartfield (1968), 94 Ill. App. 2d 421, 237 N.E.2d 193, and insist that Hartfield not Stephens correctly interprets the holding of Ker.\nWe fail to see the need here to embark on an extended discussion of the holdings in Stephens, Hartfield, and Ker. Of primary importance in all three decisions was the fact that the evidence seized was narcotics, a substance easily and quickly destroyed. Here, the physical evidence gathered by the police, with the exception of the \u201ciridescent\u201d powder, could not have been rapidly destroyed. And because defendant was unaware of the existence of the powder, there is no reason to believe he would have made any attempt to destroy this evidence even if he had known police were present. We believe, therefore, that both Stephens and Hartfield are inapplicable because any delay in entry caused by the arresting officers announcing their authority and purpose would not have resulted in the destruction of physical evidence.\nThe State next contends that the unannounced entry was necessary to protect the complainant from the danger of being sexually molested. A proper entry here would not have protected the complainant from peril. Complainant had been left alone with defendant for several hours. Even after she signaled the police that she was about to be anesthesized, they waited a sufficient time so they could be sure to catch the \u201cdefendant in the actual commission of a crime.\u201d The record does not indicate how long the police waited, however, in argument counsel for defendant referred to a 40-minute lapse while the prosecutor referred to a 20-minute lapse. Either time frame would indicate less than a precisely timed and executed plan to save complainant from sexual molestation. Indeed, the whole point of this plan was to catch defendant sexually molesting the complainant. We agree with the trial court, therefore, that the additional 5 to 15 seconds it may have taken police to knock and announce their presence and purpose, thereby complying with the dictates of the Constitution, \u201cwould not have put the complaining witness in more jeopardy than she was already.\u201d\nWe have previously discussed exceptions one and two and found them inapplicable here. Likewise, exceptions three and four do not apply to the facts in the instant case. The police had all exits blocked, so there was no danger here of a defendant escaping. Exception four is applicable in those instances where \u201cthe facts known to the officers would justify them in being virtually certain that the petitioner already knows their purpose so that an announcement would be a useless gesture (citations).\u201d Miller v. United States (1958), 357 U.S. 301, 310, 78 S. Ct. 1190, 1196, 2 L. Ed. 2d 1332, 1338.) No such facts exist here. None of the recognized exceptions, therefore, apply to the instant case.\nThe State also contends that the forcible entry was necessitated by the need to obtain direct evidence from conscious witnesses. Because complainant was unconscious during the alleged attacks, they argue that her testimony could be easily discredited. Police presence would assure credible testimony. Further, the officers were unaware of the exact nature of defendant\u2019s activities or in what state of dress or undress defendant performed them. Consequently, the State insists it was necessary for the officers to make a surprise entry in order to be sure to catch \u201cdefendant in the actual commission of the crime.\u201d\nAlthough we find no precedent which discusses the issue the State raises here, we believe it is clear that neither desire \u201cto build a stronger case,\u201d nor police speculation as to what evidence they might have missed had they made a proper entry is what the Supreme Court had in mind when they spoke of exigent circumstances. Undoubtedly, any case could be strengthened by the testimony of eight police eyewitnesses. And from a prosecution standpoint, it is always best to catch the defendant in the commission of a crime. However, such desires exist in all cases, and they certainly are not so unusual as to warrant a suspension of defendant\u2019s constitutional rights.\nMoreover, the \u201ciridescent\u201d powder which appeared on defendant was sufficient to convict defendant without eyewitness testimony. Nonetheless, the State contends that the powder marks found on defendant were inconclusive, because he could argue that he improperly touched complainant and then with his hands distributed the powder to other areas of his body. Thus, all the State could prove is a battery. We cannot agree. Because the powder was applied to complainant\u2019s vaginal area the location and amount of the powder\u2019s subsequent appearance on defendant\u2019s body would be strong evidence of defendant\u2019s misconduct.\nThe State also argues that the lack of a \u201cknock and announce\u201d statute in Illinois excuses the arresting officers\u2019 method of entry. However, Ker sets forth a minimum constitutional standard of conduct, which must be followed regardless of the lack of State statutory provisions. Neither case cited by the State in support of this contention (People v. Scott (1969), 110 Ill. App. 2d 368, 249 N.E.2d 220; People v. Scott (1973), 13 Ill. App. 3d 620, 301 N.E.2d 118) discusses the exception of exigent circumstances as set forth in Ker. We, therefore, do not consider these cases good authority for the proposition the State urges us to adopt.\nThe State finally suggests that the complainant consented to the unannounced forcible entry of police. We disagree. First, there was no evidence in the record indicating her consent. Second, even assuming she consented, complainant did not have the right to do so because she did not have \u201cjoint access or control for the most purposes\u201d over Hauser\u2019s office. (United States v. Matlock (1975), 415 U.S. 164, 171, n. 7, 94 S. Ct. 988, 993 n. 7, 39 L. Ed. 2d 242, 250 n. 7.) Defendant gave complainant as his employee limited right of control to allow \u201cpatients\u201d into Hauser\u2019s office. She, therefore, could not consent to an unannounced entry of the premises by police.\nFor the foregoing reasons the judgment of the circuit court is affirmed.\nAffirmed.\nSULLIVAN and BARRETT, JJ., concur.\nAlthough the witnesses, attorneys and court repeatedly referred to an \u201ciridescent\u201d powder, it seems apparent they were speaking of a type of phosphorescent powder which when exposed to \u201cblack light\u201d would glow. >\nAlthough this annotation deals with the Search Warrant Act (18 U.S.C. \u00a73109 (1948)), this statute is the Federal codification of the rule set forth in Ker v. California (1963), 374 U.S. 23, 83 S. Ct. 1623,10 L. Ed. 2d 726, and the exceptions discussed therein are equally applicable to State prosecutions applying Ker.", "type": "majority", "author": "Mr. PRESIDING JUSTICE LORENZ" } ], "attorneys": [ "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and Eugene J. Rudnick, Jr., Assistant State\u2019s Attorneys, of counsel), for the People.", "James R. Streicker and Allen L. Wiederer, both of State Appellate Defender\u2019s Office, of Chicago, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. NICHOLAS A. POLITO, Defendant-Appellee.\nFirst District (5th Division)\nNo. 62356\nOpinion filed September 24, 1976.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and Eugene J. Rudnick, Jr., Assistant State\u2019s Attorneys, of counsel), for the People.\nJames R. Streicker and Allen L. Wiederer, both of State Appellate Defender\u2019s Office, of Chicago, for appellee." }, "file_name": "0372-01", "first_page_order": 402, "last_page_order": 408 }