THE STATE OF ILLINOIS, Petitioner,

v.

Edward RODRIGUEZ, Respondent.

No. 88-2018.

United States Supreme Court Petitioner's Brief.

October Term, 1989.

December 22, 1989.

On Petition For A Writ Of Certiorari To The Appellate Court Of Illinois First

District

BRIEF FOR PETITIONER

NEIL F. HARTIGAN, Attorney General State of Illinois ROBERT J. RUIZ, Solicitor General State of Illinois TERENCE M. MADSEN, [FN*] Assistant Attorney General 100 West Randolph Street, Suite 1200 Chicago, Illinois 60601 Attorneys for Petitioner

CECIL A. PARTEE, State's Attorney County of Cook 309 Richard J. Daley Center Chicago, Illinois 60602 RENEE GOLDFARB, PAUL GLIATTA, Assistant State's Attorneys

FN* Counsel of Record

*i QUESTIONS PRESENTED

I.

Whether a police officer's good faith reliance on a third party's apparent authority to permit a consensual entry is a valid exception to the warrant requirement of the Fourth Amendment, in the alternative, whether the good faith exception to the exclusionary rule should be applied.

II.

Whether Gale Fisher possessed actual authority under United States v. Matlock to permit a consensual entry.

*ii TABLE OF CONTENTS

Questions Presented ... i

Table of Authorities ... iv

Opinion Below ... 1

Jurisdiction ... 2

Constitutional Provision Involved ... 2

Statement of the Case ... 2

Summary of Argument ... 9

Argument:

I. THE ILLINOIS APPELLATE COURT HAS MISINTERPRETED THE FOURTH AMENDMENT BY REFUSING TO RECOGNIZE A VALID EXCEPTION TO THE WARRANT REQUIREMENT WHEN A POLICE OFFICER, IN GOOD FAITH, RELIES ON A THIRD PARTY'S APPARENT AUTHORITY TO PERMIT A CONSENSUAL ENTRY. IN THE ALTERNATIVE, THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE SHOULD APPLY IF THE WARRANT REQUIREMENT IS NOT EXCUSED ... 12

A. Since Reasonableness Is The Touchstone Of The Fourth Amendment, The Warrant Requirement Should Be Excused Where The Objective Facts And Circumstances Indicate That Police Officers Have Reasonably Relied On A Third Party's Apparent Authority To Consent To An Entry ... 12

*iii B. If This Court Does Not Recognize Apparent Authority As An Exception To The Warrant Requirement, The Good Faith Exception To The Exclusionary Rule Should Be Applied ... 22

II. WHERE GALE FISHER REFERRED TO THE APARTMENT AT 3519 SOUTH CALIFORNIA AVENUE AS HER APARTMENT, RETAINED POSSESSION OF A KEY TO SUCH APARTMENT WHICH SHE TERMED HER KEY, AND KEPT ALL HER POSSESSIONS EXCEPT THREE BAGS OF CLOTHING AT THE APARTMENT, THE ILLINOIS APPELLATE COURT MISINTERPRETED UNITED STATES V. MATLOCK BY FINDING THAT GALE LACKED COMMON AUTHORITY TO PERMIT A CONSENSUAL ENTRY ... 26

Conclusion ... 35

*iv TABLE OF AUTHORITIES

CASES

Brinegar v. United States, 338 U.S. 160 (1949) ... 17, 18

Brown v. Illinois, 422 U.S. 590 (1975) ... 24

Commonwealth v. Wahlstrom, 375 Mass. 115, 375 N.E.2d 706 (1978) ... 13

Flanagan v. State, 440 So. 2d 13 (Fla. App. 1983) ... 13

Frazier v. Cupp, 394 U.S. 731 (1969) ... 21

Gramenos v. Jewel Companies, Inc., 797 F.2d 432 (7th Cir. 1986) ... 19

Hill v. California, 401 U.S. 797 (1971) ... 16, 17, 20

Illinois v. Gates, 462 U.S. 213 (1983) ... 18, 24

Illinois v. Krull, 480 U.S. 340 (1987) ... 24, 25

Jackson v. United States, 404 A.2d 911 (D.C. App. 1979) ... 13

Maryland v. Garrison, 480 U.S. 79 (1987) ... 16, 17, 20

McNairy v. State, 777 S.W.2d 570 (Tex. App. 1989) ... 13

Nix v. State, 621 P.2d 1347 (Alaska, 1981) ... 13, 20

People v. Adams, 53 N.Y.2d 1, 439 N.Y.S.2d 877, 422 N.E.2d 537 (1981) ... 13, 25

People v. Berow, 688 P.2d 1123 (Colo. 1984) ... 13

People v. Gary, 150 Mich. App. 446, 387 N.W.2d 877 (1986) ... 13

*v People v. Gorg, 45 Cal. 2d 776, 291 P.2d 469 (1955) ... 13

People v. Jacobs, 43 Cal. 3d 472, 233 Cal. Rptr. 323, 729 P.2d 757 (1987) ... 13

People v. Wagner, 114 Mich. App. 541, 320 N.W.2d 251 (1982) ... 13

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ... 12, 20

Snyder v. State, 738 P.2d 1303 (Nev. 1987) ... 13

Spears v. State, 270 Ark. 331, 605 S.W.2d 9 (1980) ... 13

State v. Bailey, 276 S.C. 32, 274 S.E.2d 913 (1981) ... 13

State v. Carsey, 295 Or. 32, 664 P.2d 1085 (1983) ... 13

State v. Christian, 26 Wash. App. 542, 613 P.2d 1199 (1980), aff'd., 95 Wash. 2d 655, 628 P.2d 806 (1981) ... 13

State v. Elphee, 1989 Tenn. Crim. App. Lexis 163 (March 7, 1989) ... 13

State v. Logan, 617 S.W.2d 433 (Mo. App. 1981) ... 13

State v. McGann, 132 Ariz. 296, 645 P.2d 811 (1982) ... 13

State v. Madrid, 91 N.M. 375, 574 P.2d 594 (1978) ... 31, 32, 33

State v. Matsen, Ohio Court of Appeals, slip op. (September 29, 1989) (1989 Ohio App. Lexis 3723) ... 13

State v. Miller, 159 N.J.Super. 552, 388 A.2d 993 (1978) ... 13

State v. No Heart, 353 N.W.2d 43 (S.D. 1984) ... 13

Stone v. Powell, 428 U.S. 465 (1976) ... 24

*vi Sullivan v. State, 716 P.2d 684 (Okl. App. 1986) ... 33

United States v. Calandra, 414 U.S. 338 (1974) ... 23

United States v. Crouthers, 669 F.2d 635 (10th Cir. 1982) ... 34

United States v. DiPrima, 472 F.2d 550 (1st Cir. 1973) ... 13

United States v. Janis, 428 U.S. 433 (1976) ... 24

United States v. Hamilton, 792 F.2d 837 (9th Cir. 1986) ... 13

United States v. Isom, 588 F.2d 858 (2d Cir. 1978) ... 13, 19

United States v. Lawless, 465 F.2d 422 (4th Cir. 1972) ... 34

United States v. Leon, 468 U.S. 897 (1984) ... 10, 14, 22, 23, 24, 25

United States v. Long, 524 F.2d 660 (9th Cir. 1975) ... 34

United States v. Matlock, 415 U.S. 164 (1974) ... passim

United States v. Miller, 800 F.2d 129 (7th Cir. 1986) ... 19

United States v. Peltier, 422 U.S. 531 (1975) ... 24

United States v. Peterson, 524 F.2d 167 (4th Cir. 1975) ... 13, 19

United States v. Miguel Rodriguez, No. 88-2952 (7th Cir., November 1, 1989) ... 13, 18, 19, 20

United States v. Sells, 496 F.2d 912 (7th Cir. 1974) ... 13

United States v. Sledge, 650 F.2d 1075 (9th Cir. 1981) ... 13, 19

*vii STATUTES AND CONSTITUTIONAL PROVISIONS

Ill. Rev. Stat. 1983, ch. 56 1/2, sec. 1401(A2) ... 2

Ill. Rev. Stat. 1983, ch. 56 1/2, sec. 704(D) ... 2

United States Constitution, Fourth Amendment ... passim

MISCELLANEOUS

Wayne R. LaFave, Search and Seizure, A Treatise On The Fourth Amendment, 2nd ed., vol. 3, 1987, page 260 ... 21

*1 OPINION BELOW

The Order of the Illinois Appellate Court, First Judicial District is unreported and is reproduced in the Joint Appendix to this Brief at 98. Report of Proceedings containing the trial court's findings on respondent's motion to quash arrest and suppress evidence is not reported and is reproduced in the Joint Appendix to this Brief at 93. The Order of the Illinois Supreme Court of April 5, 1989 denying petitioner's Petition for Leave to Appeal is reported at 125 Ill.2d 572 (1989).

*2 JURISDICTION

The order of the Illinois Appellate Court, First Judicial District was entered on January 11, 1989. A timely Petition for Leave to Appeal was denied by the Illinois Supreme Court on April 5, 1989. 125 Ill.2d 572 (1989). The Petition for a Writ of Certiorari was submitted on June 5, 1989, and was granted by this Court on October 30, 1989. This Court's jurisdiction is invoked under U.S.C., section 1257(3).

CONSTITUTIONAL PROVISION AT ISSUE

Amendment IV

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

STATEMENT OF THE CASE

A. Procedural History

Respondent, Edward Rodriguez, was charged by information in the Circuit Court of Cook County with possession of more than 30 grams of cocaine, in violation of Ill. Rev. Stat. 1983, ch. 56 1/2 , sec. 1401(A2). He was also charged with possession of more than 30 grams but less than 500 grams of cannabis in violation of Ill. Rev. Stat. 1983, ch. 56 1/2 , sec. 704(D). (Tr. 166-167) Prior to trial, respondent filed a motion to quash arrest and suppress *3 evidence. Respondent alleged that his warrantless arrest was invalid. Specifically, he claimed that the consent to enter the premises where he was arrested was ineffective because the consenter, Gale Fisher, had no authority to permit the entry by police officers. (Tr. 178)

At the hearing on the motion to quash arrest and suppress evidence, which was conducted on August 18, 1986, petitioner asserted that Gale Fisher possessed both the actual as well as the apparent authority to consent to the police entry. Accordingly, petitioner maintained that such entry did not violate respondent's Fourth Amendment rights. The trial court held that Gale lacked actual authority to consent to the police entry. The court also rejected an apparent authority to consent doctrine. Thus, the trial court found that respondent's Fourth Amendment rights had been violated and granted the motion.

Petitioner filed an interlocutory appeal to the Appellate Court of Illinois, which stayed any further proceedings in the trial court. Petitioner again maintained that Gale Fisher not only possessed the actual authority to consent to the police entry but that even if she lacked actual authority to consent, the police officers reasonably relied on her apparent authority to consent to the entry. The Illinois Appellate Court, in an unpublished opinion, held that Illinois cases have interpreted the Fourth Amendment as prohibiting an apparent authority to consent doctrine. The court also held that Gale Fisher lacked sufficient common authority over the premises in question to validate her consent to enter. Petitioner's subsequent Petition for Leave to Appeal these issues to the Illinois Supreme Court was denied.

*4 B. Facts

On July 26, 1985, at about 2:30 p.m. Chicago Police Officers James Entress and Ricky Gutierrez received a radio call from another officer instructing them to proceed to a residence at 3554 S. Wolcott in Chicago, Illinois. (J.App. 3-4) The officers were met there by Gale Fisher. Gale told them that earlier in the day respondent, Edward Rodriguez, had beaten her at "their apartment at 3519 S. California." (J.App. 6) Officer Entress noticed that Gale's jaw was swollen, she had a black eye and bruises on her neck. He stated, "She looked like she was the victim of a beating." (J.App. 32) In fact, it was subsequently determined that Gale had sustained a broken jaw. (J.App. 32)

Officer Entress testified that Gale also told them that she wanted to sign a complaint and that all her clothes and furniture were at the apartment on California Avenue. (J.App. 6, 25) She told Office Entress that she had been living with respondent at that apartment. (J.App. 10, 11, 25) Gale also told the officers that she had her own key and would open the door for them in order to arrest respondent, whom Gale believed was sleeping in the apartment. (J.App. 6)

At the suppression hearing, Officer Entress was asked if he had testified at a preliminary hearing on September 11, 1985 that, "She [Gale] stated she used to live there." (J.App. 10) Officer Entress agreed that he had so testified, but stated at the hearing on the motion to suppress that Gale's exact words were that, "She had been living there." (J.App. 11) Gale kept using the word "our" apartment, when referring to 3519 S. California Avenue. (J.App. 26-27) Officer Entress was never told that *5 Gale had been living with her mother prior to the beating. (J.App. 11-12)

After the initial conversation with Gale, the officers as well as Gale and her mother, Dorothy Jackson, proceeded to 3519 S. California. Gale walked up to the door, opened the door with a key and allowed the officers to enter the apartment. (J.App. 13) Officer Entress testified that Gale stated it was her key. (J.App. 6, 10, 16, 26) Gale and her mother returned to the police vehicle, while the officers entered the apartment. The officers noticed a bed in the middle of the room. (J.App. 17) There were drug paraphernalia such as scales and pipes that were scattered on the bed. (J.App. 28)

Officer Entress testified that in order to enter the bedroom, they had to walk past some tupperware that was uncovered and in plain view. (J.App. 21) The officer noticed a white powder inside the tupperware that he suspected to be cocaine. (J.App. 28) At that time, the officers did not pick up or handle anything. Instead, they proceeded directly into the bedroom where respondent was sleeping. (J.App. 18-19) As the officers were attempting to awaken respondent, they saw two open briefcases by the side of the bed. (J.App. 19, 21, 29) Inside these attache caseswere clear plastic bags containing a white substance that was similar in appearance to the substance they had just seen in the tupperware in the living room. (J.App. 28)

Upon awakening, respondent asked the officers if he could get his money from a dresser drawer in the front room. Respondent opened the drawer and Officer Entress *6 saw $452.00 and another clear packet containing a white substance. (J.App. 30)

Respondent was transported to the police station where the officers then inventoried the evidence collected at the apartment. This evidence included the controlled substance and cannabis sativa. (J.App. 20, 31) Gale subsequently signed a battery complaint against respondent. (J.App. 31)

Testifying on behalf of petitioner, Dorothy Jackson, Gale's mother, stated that she lived at 3554 S. Wolcott in Chicago. She specifically stated that she lived by herself. (J.App. 35) Ms. Jackson further testified that on July 26, 1985, Gale came to Ms. Jackson's apartment and told Ms. Jackson that respondent had beaten her. (J.App. 45-46) Ms. Jackson noticed that Gale had a black eye and a swollen jaw. (J.App. 46) Ms. Jackson confirmed that when Officers Entress and Gutierrez arrived, Gale told them that respondent had beaten her up. (J.App. 48) Ms. Jackson further testified that in Gale's conversation with the police officers she referred to the apartment at 3519 S. California as "our apartment" and never as "his apartment." (J.App. 52) Ms. Jackson, in her testimony, referred to 3519 S. California as Gale's home. (J.App. 52) Dorothy Jackson also corroborated that Gale opened the door to the apartment at 3519 South California with her own key and allowed the officers to effectuate respondent's arrest. (J.App. 50) Ms. Jackson stated that Gale never told the officers that "she used to live there" or that she did not live at 3519 South California anymore. (J.App. 57)

Dorothy Jackson further testified that on July 1, 1985, Gale brought her children to Ms. Jackson's home and *7 asked her mother to help move clothes from her apartment at 3519 S. California. They drove to Gale's apartment. Gale opened the door with her key and told her mother to wait so she could get some clothes for the children and herself. She brought two or three baggies, "what ever she could grab real fast." (J.App. 39) Gale left behind all the rest of her personal belongings, including a stove, a refrigerator, a table, chairs, a sofa-bed, the childrens' bed, a dresser, personal bills and china given to Gale by her grandmother. (J.App. 40)

Gale told her mother that she left because respondent wanted the baby to be weaned from her bottle and her other daughter toilet trained. (J.App. 41) After the girls were trained, Gale was to return to her apartment. (J.App. 41) Gale frequently returned to her California Avenue apartment and did not always return to her mother's apartment during the interval of July 1 to July 26. (J.App. 44) When Gale was at her mother's residence, she slept on a coach.

Gale Fisher testified on behalf of respondent. She stated that on July 1, 1985, she moved in with her mother, but prior to that date she lived at 3519 S. California. (J.App. 62-63) She had lived there since December, 1984 with her children. (J.App 68) Gale claimed that when she left she did not have a key to the apartment. (J.App. 64) Between July 1 and July 26 she saw respondent almost every day at the California Avenue apartment and sometimes she spent the night there. (J.App. 73) Gale conceded that she left all her furniture, childrens' furniture and china at the California Avenue apartment. (J.App. 69- 70, 72) The only thing that she moved out of the apartment between July 1 and July 26 was clothing. (J.App. 72)

*8 Gale testified that she spoke to police officers on July 26, 1985 at her mother's home and she admitted that she told the officers that she had a key to the apartment on California Avenue and that she would use it to let them enter the premises. (J.App. 77-78) Gale also admitted that she accompanied the officers to the California Avenue apartment and opened the door with the key. (J.App. 78) However, Gale alleged that she took the key from respondent's dresser earlier that day just after respondent beat her. She said respondent had not given her permission to take the key. (J.App. 66) On cross- examination, Gale was asked if she had testified at the preliminary hearing that respondent had given her the key. (J.App. 80) She said she could not remember, but it was stipulated that she in fact had so testified.

Gale testified that subsequent to the July 26th beating, respondent beat her again. This time he hit her in the face with his fist, fracturing her cheekbone in four places. (J.App. 82) Gale admitted fearing respondent at times. (J.App. 82) The court asked Gale why she took the key on July 26th and did not take it on any prior occasion. Gale claimed that during the argument, the doors to the California Avenue apartment were locked and a key was needed to open the door from the inside. (Tr. 99) However, on redirect examination, Gale admitted that on the date of the July 26th argument, respondent had actually let her out of the apartment, but she wanted the key in case "he ever did that again." (Tr. 100)

Examination by the trial judge also elicited the following testimony from Gale: her name was not on the lease for the apartment, she did not contribute to rent payments in June or July (Tr. 100-101) - although she did *9 use her check to pay for their bills and groceries - she never invited friends to the apartment and she never went to respondent's home when he was not there. (Tr. 102)

The trial court held that Gale did not have the actual authority to consent to the police officers' entry of the apartment on California Avenue. The court based its decision on its finding that Gale's name was not on the lease, she did not contribute to the rent, it was not her exclusive or usual place of residence, she did not have access when respondent was not there, she never brought people there and she moved her clothes and children to her mother's home. The Illinois Appellate Court agreed and noted further that Illinois cases had interpreted the Fourth Amendment as prohibiting an apparent authority to consent doctrine.

SUMMARY OF ARGUMENT

The Fourth Amendment only prohibits unreasonable searches and seizures. It is well-established that a search based on the valid consent of a third party is not unreasonable and, therefore, does not violate a defendants' Fourth Amendment rights. United States v. Matlock, 415 U.S. 164 (1974). When police officers, in good faith, reasonably rely on objective facts and circumstances which indicate that a third party possesses sufficient authority over the premises to give valid consent to enter, the ensuing entry is not unreasonable and no warrant should be required by the Fourth Amendment. The propriety of *10 this doctrine, which has been termed apparent authority to consent, was specifically left open in Matlock.

The entry of 3519 South California by police officers in the case at bar was proper under the Fourth Amendment because the objective facts presented to the officers supported their reasonable belief that Gale Fisher possessed actual authority to consent. The officers knew that Gale had been beaten by respondent at 3519 South California which Gale referred to as "our" apartment. Gale told them that all of her possessions were at that apartment and that she had a key to allow them entry. Gale said it was "her" key and she opened the door for the officers in order to effectuate the arrest of respondent. Moreover, all of their information was corroborated by an independent witness, Dorothy Jackson, Gale's mother. Based on these facts, any reasonable police officer would have concluded that Gale had the necessary authority to consent to the entry of the premises.

Alternatively, even if this Court were to hold that the Fourth Amendment does not provide for the apparent authority to consent doctrine and that the warrant requirement is not excused, exclusion of the evidence is an inappropriate remedy. Where, as here, police officers, in good faith, reasonably rely on objective facts and circumstances, which indicate that a third party has the authority to consent to an entry, the good faith exception to the exclusionary rule should be applied. United States v. Leon, 468 U.S. 897 (1984). Since there was no misconduct on the part of the police officers in this case, exclusion would only serve to discourage police officers from conducting valid consensual searches.

*11 Petitioner also contends that the Illinois Appellate Court misapplied Matlock to the facts of the instant case when it held that Gale Fisher did not possess common authority to consent to the police entry. At the time of the entry, Gale was living with her mother on a temporary basis. The fact that all of her possessions including appliances, furniture and personal effects, such as her grandmother's china, remained at 3519 South California strongly support the conclusion that Gale had not abandoned the premises but rather had mutual use and joint control for most purposes. This conclusion is further supported by her possession of the key. In short, the Illinois Appellate Court misapplied Matlock by relying on property concepts in determining the existence of common authority.

*12 ARGUMENT

I.

THE ILLINOIS APPELLATE COURT HAS MISINTERPRETED THE FOURTH AMENDMENT BY

REFUSING TO RECOGNIZE A VALID EXCEPTION TO THE WARRANT REQUIREMENT WHEN A

POLICE OFFICER, IN GOOD FAITH, RELIES ON A THIRD PARTY'S APPARENT AUTHORITY TO

PERMIT A CONSENSUAL ENTRY. IN THE ALTERNATIVE, THE GOOD FAITH EXCEPTION TO THE

EXCLUSIONARY RULE SHOULD APPLY IF THE WARRANT REQUIREMENT IS NOT EXCUSED.

A.

Since Reasonableness Is The Touchstone Of The Fourth Amendment, The Warrant Requirement Should Be Excused Where The Objective Facts And Circumstances Indicate That Police Officers Have Reasonably Relied On A Third Party's Apparent Authority To Consent to An Entry.

In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), this Court held that consent is a valid exception to the Fourth Amendment warrant requirement. In United States v. Matlock, 415 U.S. 164 (1974), this court further held that consent may be obtained from a third party who possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected. 415 U.S. at 171. The case at bar presents the question explicitly left open in Matlock, that being whether the police officers reasonably believed that a third party had sufficient authority over the premises to render valid consent. 415 U.S. 164, 177 n.14. If a police officer reasonably relies on objective facts and circumstances which indicate that a *13 third party possesses a sufficient relationship to the premises to give valid consent to enter, the Fourth Amendment warrant requirement should be excused.

The overwhelming majority of both state and federal courts that have reached the issue have fully embraced this proposition which has come to be known as the apparent authority to consent doctrine. [FN1] Properly *14 interpreted, the Fourth Amendment would excuse the warrant requirement when police officers rely on a third party's apparent authority to consent to an entry. The test for apparent authority should be whether the police, acting in good faith, reasonably believe that the third party possesses the requisite authority to consent. This test ignores the subjective beliefs of the officers, and looks to objective facts which the officers relied upon in concluding that the third party possessed sufficient authority to consent. [FN2]

FN1 Nix v. State, 621 P.2d 1347 (Alaska, 1981); State v. McGann, 132 Ariz. 296, 645 P.2d 811 (1982); Spears v. State, 270Ark. 331, 605 S.W.2d 9 (1980); People v. Gorg, 45 Cal. 2d 776, 291 P.2d 469 (1955); People v. Jacobs, 43 Cal. 3d 472, 233 Cal. Rptr. 323, 729 P.2d 757 (1987) (en banc); People v. Berow, 688 P.2d 1123 (Colo. 1984); Jackson v. United States, 404 A.2d 911 (D.C. App. 1979); Flanagan v. State, 440 So. 2d 13 (Fla. App. 1983); Commonwealth v. Wahlstrom, 375 Mass. 115, 375 N.E.2d 706 (1978); People v. Gary, 150 Mich. App. 446, 387 N.W.2d 877 (1986); People v. Wagner, 114 Mich. App. 541, 320 N.W.2d 251 (1982); Snyder v. State, 738 P.2d 1303 (Nev. 1987); State v. Miller, 159 N.J.Super. 552, 388 A.2d 993 (1978); People v. Adams, 53 N.Y.2d 1 (1981); State v. Bailey, 276 S.C. 32, 274 S.E.2d 913 (1981); State v. No Heart, 353 N.W.2d 43 (S.D. 1984); State v. Elphee, 1989 Tenn. Crim. App. Lexis 163 (March 7, 1989); McNairy v. State, 777 S.W.2d 570 (Tex. App. Austin, 1989); State v. Christian, 613 P.2d 1199 (1980), aff'd., 95 Wash, 2d 655, 628 P.2d 806 (1981). In addition, Federal Circuit Courts of Appeals have also adopted this doctrine. They include United States v. DiPrima, 472 F.2d 550 (1st Cir. 1973); United States v. Isom, 588 F.2d 858 (2d Cir. 1978); United States v. Peterson, 524 F.2d 167 (4th Cir. 1975); United States v. Rodriguez, Slip op. No. 88-2952 (7th Cir., November 1, 1989); United States v. Sells, 496 F.2d 912 (7th Cir. 1974); United States v. Hamilton, 792 F.2d 837 (9th Cir. 1986); United States v. Sledge, 650 F.2d 1075 (9th Cir. 1981). Compare: State v. Logan, 617 S.W.2d 433 (Mo. App. 1981). Contra: State v. Carsey, 295 Or. 32, 664 P.2d 1085 (1983); State v. Matsen, Ohio Court of Appeals, Slip op. (September 29, 1989) (1989 Ohio App. Lexis 3723).

FN2 In using the term good faith in this section, petitioner is not referring to the good-faith exception to the exclusionary rule that was announced in United States v. Leon, 468 U.S.897 (1984). Petitioner's main contention is that since the Fourth Amendment provides for apparent authority to consent, respondent's Fourth Amendment rights have not been violated and thus, the exclusionary rule is inapplicable. The issue of whether the good faith exception to the exclusionary rule should be applied if the Fourth Amendment does not provide for apparent authority is discussed in Section B.

The facts of this case clearly support a determination that Officers Entress and Gutierrez reasonably believed that Gale Fisher possessed the requisite authority to consent to their entry at 3519 South California Avenue in order to arrest respondent, Edward Rodriguez. The officers were called to the house of Dorothy Jackson, Ms. Fisher's mother. At the suppression hearing, Officer Entress testified that Gale Fisher told him the following:

She stated Edward Rodriguez earlier in the day had beaten her at their apartment at 3519 S. California. She stated that she wanted to sign complaints. That all her clothes and her furniture were in that apartment and that she had her *15 own key for the apartment. That she would open the door and allow us to go into arrest Eddie Rodriguez who was at the apartment at the time and she felt he was sleeping. (J.App. 6)

Dorothy Jackson confirmed that, in fact, her daughter had referred to the apartment at 3519 South California as "her home" as well as "our apartment" when talking to the police officers. (J.App. 52) Officer Entress testified that Gale Fisher repeatedly used the word "our" when referring to the apartment at 3519 South California. (J.App. 26)

After deciding that she indeed wanted to press charges against respondent, Gale, Dorothy Jackson and the police officers proceeded to 3519 South California. Gale took out her key, opened the door to the apartment and allowed the officers to enter. According to Officer Entress, Gale stated that this was her key. (J.App. 6, 9, 16, 26)

The police officers were thus faced with a woman who had been severely beaten; Gale Fisher had a swollen jaw, a black eye and bruises on her neck. (J.App. 32) Gale told the officers that her live-in boyfriend was responsible and volunteered to take the officers to what she termed "our" apartment. Moreover, she told the officers that all her clothes and furniture were at the apartment at 3519 South California. Upon arriving at the residence, Gale produced a key which she referred to as hers, and allowed the officers to enter to effectuate the arrest. The beating in fact took place at that same apartment.

Based on these objective facts and circumstances, any reasonable police officer would have concluded that Gale Fisher possessed the actual authority to permit the entry. This is especially true where all of this information was *16 corroborated by an independent witness, Dorothy Jackson. Moreover, the officers had no reason to question Gale's possession of the key. The officers were not told that Gale had also been staying at her mother's apartment prior to the beating.

In interpreting the Fourth Amendment, this Court has long held that its guiding determination is reasonableness. Indeed, it is the touchstone of the Fourth Amendment that only unreasonable searches and seizures are to be prohibited. In analogous circumstances, this Court has ruled that a search based on a good faith mistake of fact is not unreasonable. Hill v. California, 401 U.S. 797 (1971); Maryland v. Garrison, 480 U.S. 79 (1987).

In Hill, this Court was faced with a situation where police officers possessed probable cause to arrest the defendant. When the officers arrived at defendant Hill's residence, they arrested a person whom they believed to be defendant, but who later turned out to be defendant's accomplice, Miller. Incident to this arrest, a subsequent search of Hill's residence turned up evidence that formed the basis for defendant's armed robbery conviction. In upholding the denial of defendant's motion to suppress, this Court stated:

The upshot was that the officers in good faith believed Miller was Hill and arrested him. They were quite wrong as it turned out, and subjective good- faith belief would not in itself justify either the arrest or the subsequent search. But sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officers' mistake was understandable and the *17 arrest a reasonable response to the situation facing them at the time.

461 U.S. at 805-806.

Thus, in Hill, notwithstanding the officers' mistake, the Court upheld the application of the search incident to arrest exception to the warrant requirement due to the reasonableness of their conduct. Moreover, in Maryland v. Garrison, supra, this Court held that the underlying rationale in Hill was "equally applicable to an officer's reasonable failure to appreciate that a valid warrant describes too broadly the premises to be searched." 480 U.S. at 88. Likewise, an arrest based on an officer's reasonable determination that a third party possessed the requisite authority to permit a consensual entry should not be proscribed by the Fourth Amendment if it is subsequently determined that the third party, in fact, lacked sufficient authority to consent.

This interpretation is also consistent with the analogous line of cases that have determined the standard for assessing probable cause to arrest under the Fourth Amendment. For instance, in Brinegar v. United States, 338 U.S. 160 (1949), the Court stated:

Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts *18 leading sensibly to their conclusions of probability.

330 U.S. at 176. [FN3]

FN3 In Brinegar, the Court further stated that:

In dealing with probable cause, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act. 338 U.S. 160, 175 (1949). See also Illinois v. Gates, 462 U.S. 213 (1983).

As noted previously, the vast majority of courts that has addressed this issue has adopted the apparent authority to consent doctrine. See n.1, supra. Most recently, in United States, v. Miguel Rodriguez, No. 88-2952 (7th Cir., November 1, 1989), (no relation to the case at bar) the United States Court of Appeals for the Seventh Circuit noted that the question posed by the Fourth Amendment is whether a search is reasonable and held further that it is reasonable for police officers to act on the basis of apparently valid consent. In Rodriguez, defendant's wife consented to an entry of defendant's quarters. Defendant was a janitor at a union hall, who shared an upstairs room with his wife. Prior to his arrest, defendant separated from his wife, moved out of the upstairs room and began residing in the janitors' quarters, which he shared with another janitor. Subsequent to defendant's arrest, Ms. Rodriguez used her key to permit the agents to enter the janitors' quarters.

In upholding the legality of the consent to entry, the Seventh Circuit specifically held that a reasonable *19 interpretation of the Fourth Amendment would provide for an apparent authority doctrine. The Court stated:

Mrs. Rodriguez's possession of the key gave her apparent authority to consent. Apparent authority is enough. Just as police may have probable cause to act even though their source was lying, so they may act when the person giving consent has apparent authority. United States v. Miller, 800 F.2d 129, 133 (7th Cir. 1986); United States v. Sledge, 650 F.2d 1075, 1077-81 (9th Cir. 1981) (Kennedy, J.); United States v. Isom, 588 F.2d 858, 861 (2d Cir. 1978); United States v. Peterson, 524 F.2d 167, 180 (4th Cir. 1975); cf. United States v. Matlock, 415 U.S. 164, 177 n.14 (1974) (reserving the question). The question posed by the Fourth Amendment is whether the search is "reasonable", and it is reasonable to act on the basis of apparently valid consent.

Slip op. 6.

In Rodriguez, the Seventh Circuit Court of Appeals also expressed concern over the dangers engendered by an interpretation of the Fourth Amendment which would not provide for recognition of an apparent authority doctrine. The Court observed:

Going beneath the surface of the information at hand - whether furnished by an eyewitness, see Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 437-41 (7th Cir. 1986), or by a person giving consent - would make the outcome of the search depend on the niceties of property or marital law far removed from the concerns of the Fourth Amendment. Consents would become untrustworthy unless the police spent additional time investigating the authority of the person who gave consent, which in a case *20 like ours would require knowledge of Illinois domestic relations law and the living arrangements of the couple.

Slip op. at 6.

Police officers should not be required to be legal technicians, but rather, reasonably prudent men and women. They must make on-the-spot judgments in a myriad of difficult situations. Brinegar, supra, 338 U.S. at 175. Police officers do not have legal documents such as leases, warranty deeds or affidavits of title at their disposal. They can only be expected to deal with what is apparent to them at the time consent is given. See Hill, supra, 401 U.S. at 803-804; Garrison, supra, 480 U.S. at 88.

A determination to the contrary would render this Court's decision in Schneckloth v. Bustamonte, supra, 412 U.S. 218, a hollow one. [FN4] A decision rejecting an apparent authority to consent doctrine would not deter police misconduct because there is no wrongdoing when police officers reasonably rely on the objective facts and circumstances available to them. However, rejection of the doctrine could serve to deter the use of consensual searches which are a "wholly legitimate aspect of effective police activity." Id. at 228. As the Seventh Circuit stated in United States v. Miguel Rodriguez, supra, "Denying police the ability to act on the basis of apparent authority would not deter improper conduct; it would instead deter acting on the basis of consents. Nix of Alaska, 621 P.2d 1347, 1349-50 (Alaska, 1981)." See slip op. at 6.

FN4 "In short, a search pursuant to consent ... properly conducted, is a constitutionally permissible and wholly legitimate aspect of effective police activity." 412 U.S. at 228.

*21 The adoption of the apparent authority to consent doctrine is also necessary to conform Fourth Amendment analysis to the significant sociological and cultural changes that have occurred in the fifteen years since this Court issued its decision in Matlock. Today, it has become quite common for individuals to enter into fluid, nonmarital living arrangements. [FN5] As such, actual authority can be an extremely elusive concept and one quite unsuited to the exigencies of the various situations now faced by our nation's law enforcement officers on a daily basis. [FN6]

FN5 See also, Wayne R. LaFave, Search and Seizure, A Treatise On The Fourth Amendment, 2nd ed., vol. 3, 1987, page 260, wherein it is suggested that in Frazier v. Cupp, 394 U.S. 731 (1969), there is at least a hint that the valued practice of allowing searches by consent ought not be subjected to unrealistic restraints based upon subtle distinctions in individual living arrangements.

FN6 This is not to suggest that a determination by a court of law that actual authority to consent existed should be abandoned. As in Matlock, if it is determined that actual authority to consent was in fact present, then there would be no need to analyze whether or not the police officers reasonably relied on the objective facts and circumstances presented to them. Only when a court of law finds actual authority to consent lacking will the determination of the police officers' actions be scrutinized under the apparent authority doctrine. (See Argument II, infra, p. 26)

In sum, whenever a police officer reasonably and in good faith relies on objective facts and circumstances which indicate that a third party possesses a sufficient *22 relationship to the premises to give valid consent to enter, the Fourth Amendment warrant requirement should be excused. It was certainly reasonable for Officers Entress and Gutierrez to believe that Gale Fisher in fact possessed the requisite actual authority to consent to their entry. She referred to the premises as our apartment and referred to the key which she used to allow the officers' entry as her key. Gale Fisher quite clearly was the victim of a severe beating which she claimed was administered by respondent at the California Avenue apartment. Where, as here, the police officers' conduct is objectively reasonable, the Fourth Amendment warrant requirement should be excused. As such, the ruling of the Illinois Appellate Court should be reversed.

B.

If This Court Does Not Recognize Apparent Authority As An Exception To The Warrant Requirement, The Good Faith Exception To The Exclusionary Rule Should Be Applied.

Assuming that this Court holds that the Fourth Amendment warrant requirement is not excused where police officers reasonably rely on a third party's apparent authority to consent to an entry, the good faith exception to the exclusionary rule should be applied.

In United States v. Leon, 468 U.S. 897 (1984), this Court held that the exclusionary rule would not bar the use of evidence in the prosecution's case in chief where the evidence was obtained by officers acting in reasonable reliance on a search warrant issued by a detached and *23 neutral magistrate, but ultimately found to be unsupported by probable cause. In so holding, this Court recognized that the exclusionary rule operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved. United States v. Calandra, 414 U.S. 338, 348 (1974).

Indisputably, the central purpose of the exclusionary rule is the deterrence of police misconduct. In Leon, the Court's decision was grounded in its finding, that the exclusionary rule could not have any deterrent effect when the offending officers acted in an objectively reasonable manner in obtaining and executing the warrant.

The underlying rationale of Leon applies with equal force to the case at bar. Here, the officers in good faith possessed an objective good faith belief that Gale Fisher had common authority over the premises at 3519 South California. Gale Fisher specifically used the word "our" when referring to the premises and her mother referred to it as "her home," i.e., Gale's home. (J.App. 52) In addition, Gale told the officers that her furniture and her clothes were at the apartment. Further, Gale allowed the officers to enter through the front door with what she called "her" key. (J.App. 27) The officers believed they had secured the necessary consent to enter the residence without a warrant and that belief was objectively reasonable.

Just as in Leon, the purpose of the exclusionary rule would not be served by suppressing the evidence in this case. When police officers reasonably believe that they *24 are acting in accord with the Fourth Amendment, there can be no deterrent effect. As this Court observed in United States v. Peltier, 422 U.S. 531, 539 (1975), which was cited with approval in Leon:

'If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the lawenforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment. See also Illinois v. Gates, 462 U.S. at 260-61, 103 S.Ct. at 2344 (White, J., concurring in judgment); United States v. Janis, supra, 428 U.S. at 459, 96 S.Ct. at 3034: Brown v. Illinois, 422 U.S. at 610-11, 95 S.Ct. at 2265-66 (Powell J., concurring in part). In short, where the officer's conduct is objectively reasonable, excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that ... the officer is acting as a reasonable officer would and should act in similar circumstances. Excluding the evidence can in no way effect his future conduct unless it is to make him less willing to do his duty. Stone v. Powell, 428 U.S. at 539-40, 96 S.Ct. at 3073-74 (White, J., dissenting).' United States v. Leon, 468 U.S. 897 at 921. (emphasis added)

Furthermore, in Illinois v. Krull, 480 U.S. 340 (1987), this Court held that where police officers reasonably rely on a state statute that is later determined to be unconstitutional, evidence seized during a search made pursuant to such statute should not be subjected to the strictures of the exclusionary rule. In so holding, Krull recognized that police officers need only act reasonably under the Fourth Amendment, and reasonableness is to *25 be measured by the objective facts and circumstances presented at the time of the search. See also People v. Adams, 53 N.Y.2d 1, 439 N.Y.S.2d 877, 422 N.E.2d 537 (1981), wherein the New York Court of Appeals specifically recognized that where a police officer reasonably relied on a third party's apparent authority to consent, the exclusionary rule should not apply. Just as in Leon, the Court in Krull refused to punish reasonable law enforcement activity with the extreme sanction of exclusion. Similarly, application of the exclusionary rule in the case at bar would be equally inappropriate and unwarranted.

Here, the police officers acted in reasonable, good faith, reliance on Gale Fisher's apparent authority to permit their entry. They entered the apartment because they reasonably believed that Gale Fisher possessed common authority. In the future, police officers, faced with similar circumstances will make the same decision when they reasonably believe they have secured valid consent. The only tangible effect of a failure to adopt the apparent authority to consent doctrine will be to deter consensual searches and thereby impair legitimate police activity. It is for this reason that neither the purpose of the exclusionary rule nor the interests of justice would be served by excluding the evidence in this case.

*26 II.

WHERE GALE FISHER REFERRED TO THE APARTMENT AT 3519 SOUTH CALIFORNIA AVENUE AS

HER APARTMENT, RETAINED POSSESSION OF A KEY TO SUCH APARTMENT WHICH SHE TERMED

HER KEY, AND KEPT ALL HER POSSESSIONS EXCEPT THREE BAGS OF CLOTHING AT THE

APARTMENT, THE ILLINOIS APPELLATE COURT MISINTERPRETED UNITED STATES V. MATLOCK

BY FINDING THAT GALE LACKED COMMON AUTHORITY TO PERMIT A CONSENSUAL ENTRY.

In reaching the conclusion that Gale Fisher lacked the authority to consent to the police entry of 3519 South California on July 26, 1985, the Illinois Appellate Court misapplied this Court's holding in United States v. Matlock, 415 U.S. 164 (1974). In Matlock, this Court held that the consent which is necessary to justify a warrantless search may be obtained from a third party who possesses common authority over the premises sought to be inspected. In explaining the concept of a third party's common authority, the Matlock court stated:

Common authority is, of course, not to be implied from the mere property interest a third party has in the property ... but rests rather on mutual use of the property by persons generally having joint control for most purposes, so that it is reasonable to recognize that any of the cohabitants had the right to permit the inspection in his own right and that the others have assumed the risk that one of their member might permit the common area to be searched. Id. 415 U.S. 172, n.7.

In light of this Court's pronouncement of common authority in Matlock, the facts in the case at bar support a *27 determination that Gale Fisher possessed a sufficient relationship to the premises to give valid consent to enter to the police officers. Gale and her two children lived with respondent at 3519 South California from December of 1984 until July of 1985. During that period, Gale testified that her stove, refrigerator, sofa-bed, table and chairs were at the apartment along with a dresser and beds which were used by her children. Gale indicated that her grandmother's china was kept at the apartment as well. The fact that these possessions were used at the apartment at 3519 South California was corroborated by Gale's mother, Dorothy Jackson.

Gale admitted that she had an argument with respondent, had fought with him on other occasions and that respondent would slap her. Gale stated that on July 1, 1985, she took clothing for herself and her children and moved out of the apartment at 3519 South California and in with her mother at 3554 South Wolcott. However, Gale admitted that besides some clothing, everything else that she owned remained at the apartment at 3519 South California. (J.App. 72)

Between July 1, 1985 and July 26, 1985, Gale testified that she returned to the apartment at 3519 South California almost every day to see respondent. (J. App. 73) Gale also admitted that sometimes she would be there late into the night and had probably slept there on occasion. Dorothy Jackson substantiated this by testifying that during this period, Gale did not come back to Ms. Jackson's apartment until 3:00 a.m. on at least three to five occasions. (J.App. 55)

*28 At the hearing on the motion to quash arrest and suppress evidence, Gale testified that she left her key at the apartment on California on July 1, 1985 when she moved in with her mother, (J.App. 64) and when respondent beat her up on July 26, 1985, she took the key from the dresser without his knowledge or permission. However, at the preliminary hearing held on September 11, 1985, Gale testified that respondent had given her the key to the apartment. (J.App. 80) It is noteworthy that Gale admitted that subsequent to the beating and respondent's arrest on July 26, 1985, respondent came through her friend's window, used his fist to hit her in the face with such force that Gale's cheekbone was fractured in four places. (J.App. 82) Gale also admitted that she was afraid of respondent when he gets mad. (J.App. 84)

When these facts are analyzed in light of this Court's decision in Matlock, it is clear that Gale possessed common authority over the apartment at 3519 S. California. From December of 1984 to June 30, 1985, Gale unquestionably possessed common authority. By moving out temporarily, Gale did not lose her common authority over the apartment. Gale did not abandon the premises. Gale admitted that every worldly possession besides some clothing, remained at the apartment. Indeed, Gale was at the apartment almost every day between July 1 and July 26. Dorothy Jackson's testimony corroborates this point. In describing the July 1 move, Dorothy testified that Gale told her that the purpose of returning to her mother's home was to toilet train one child and wean the other from her bottle because respondent was annoyed with their lack of training. After the girls were trained, Gale was to return to her apartment. (J.App. 41) When Gale *29 moved into her mother's home, she just took some clothing, "whatever she could grab real fast." (J.App. 39) This was hardly a permanent move, nor had Gale abandoned her interest in the premises on California Avenue. Gale's stay at her mother's home was intended to be temporary, a fact supported by Gale's frequent visits to "her" apartment. Gale's use of the key to enter the apartment on July 1, 1985, and July 26, 1985 further evidences not only Gale's mutual use, but her control over the premises. The story about how Gale came to possess that key differed substantially from her previous court reported testimony.

It is clear that Gale possessed a sufficient relationship to the premises to give valid consent to enter to the police officers. It is only through a misapplication of Matlock that the Illinois Appellate Court and the trial court were able to reach a contrary conclusion. Indeed, the Illinois Appellate Court was guided by the precise property concepts of which the Matlock court expressed its disapproval. In finding that Gale Fisher lacked a sufficient relationship to the premises and thus lacked actual authority to give valid consent, the Illinois Appellate Court relied on these specific factors:

(1) Gale's name was not on the lease and she did not contribute to the rent;

(2) 3519 South California was not her exclusive or even her usual place of residence, rather, she was an infrequent visitor, guest or invitee;

(3) She did not have access to the apartment when respondent was not there and, like a guest, she only had access to the apartment when respondent was present;

*30 (4) She never brought people over to the apartment;

(5) She moved her clothes, and more importantly, her children to her mother's residence.

In relying on these factors the Illinois Appellate Court not only violated both the spirit and intent of this Court's decision in Matlock, but ignored its precise dictates. First, the fact that Ms. Fisher's name did not appear on the lease and that she did not contribute to the rent are the precise type of property concepts that this Court condemned in Matlock. Many people do not contribute monetarily to rent payments, nor have their name on the lease. Nevertheless, they would be quite alarmed and appalled to discover that they cannot give valid consent to enter their places of residence.

Second, the facts of this case also show that 3519 South California was Gale's permanent residence. Gale moved to her mother's home on a temporary basis taking with her whatever she could carry. The fact that all her possessions remained at 3519 S. California is strong evidence that this was still her permanent residence. Technically, when Gale moved in with her mother, 3519 S. California was no longer her "exclusive residence." However, many people have more than one residence. For example, it is common for people to own summer homes or maintain a permanent residence in the suburbs and an apartment in the city. Furthermore, the evidence belies the finding that Gale was an infrequent visitor. She admittedly went to 3519 South California almost every day during the period between July 1 and July 26 and even spent the night.

*31 Third, contrary to the conclusion of the Illinois Appellate Court, Gale probably did have access to the apartment when respondent was not there. Indeed when she moved her clothes out of the apartment, she entered with a key. She also used her key on July 26, 1985, which she had initially testified at the preliminary hearing respondent had given her. On both of these occasions, these entries were witnessed by Dorothy Jackson.

Fourth, the fact that Gale never brought friends to the apartment is not dispositive. There was no testimony that she was prohibited from doing so.

Finally, Gale moved her children and three baggies of clothing for what was supposed to be a short period of time. The move was not intended to be permanent.

In State v. Madrid, 91 N.M. 375, 574 P.2d 594 (1978), the New Mexico Court of Appeals was faced with facts similar to those of the instant case. In Madrid, the Court of Appeals, in reliance on Matlock, found that defendant's wife possessed common authority over the premises and reversed the suppression order that had been entered by the trial court.

Defendant, Eugene Madrid, and his wife were married in 1972, moved into the Morgan Street residence in 1974 and lived there together until November, 1976. When marital difficulties arose, Mrs. Madrid moved out of the residence in question and moved in with her mother. As in the case at bar, Mrs. Madrid took most of her clothing with her, but left property in which she possessed a legitimate interest, including a television set, *32 automobile and bedroom furniture. She also left a bedroom set that she owned herself and a box of "unidentified things" that belonged to her daughter. In addition, defendant paid the rent and all bills at the residence. Finally, both defendant and his wife possessed keys to the residence.

In Madrid, defendant's wife consented to an entry and search of defendant's residence. Defendant's wife met the officers at the residence, unlocked the back door with a key and told the officers that they could go inside and look around. Id. at 595. Just as in the case at bar, the question of the validity of Mrs. Madrid's consent arose due to the fact that she was not living at the residence at the time she gave consent.

On the basis of these facts, the Madrid court found that Mrs. Madrid possessed common authority under Matlock, and thus gave valid consent. Unlike the Illinois Appellate Court, the Madrid court was faithful to this Court's directives not to rely on property concepts when assessing third party consent. Indeed the court stated: "The question of ... 'common authority' is not to be determined on the wife's property interest in the premises." Id. at 596. Thus, the court recognized that under Matlock, a third party may validly consent if he or she possesses common authority or other sufficient relationship to the premises. Id. at 597.

The Madrid court found that Mrs. Madrid possessed a sufficient relationship to the premises. Unlike the Illinois Appellate Court, the Madrid court found that the wife's possession of the key justified an inference of unrestricted access. Id. at 597. The court also focused on the *33 fact that Mrs. Madrid left property on the premises in which she had a legitimate interest. Mrs. Madrid had moved out of the residence over five months prior to the search. In the case at bar, Gale had left for only twenty-five days, had spent substantial amounts of time at 3519 South California and in fact spent the night there on several occasions.

In Sullivan v. State, 716 P.2d 684 (Okl. App. 1986), the Oklahoma Court of Criminal Appeals reached a similar conclusion when confronted with analogous facts. In Sullivan, defendant Sullivan and his common-law wife, Ruth Leber, shared a rental house together until April 7, 1983. On that date, due to marital problems, Leber moved most of her belongings and those of her children out of the house and into her mother's home. However, Leber did leave some things at the residence that she planned to pick up at a later time. Moreover, she retained a key to the residence that she used to allow the officers to enter on the following day.

Defendant was subsequently arrested following an altercation with his common- law wife. The following day, Leber met the officers at the residence, produced a key and allowed the officers access to the house. Again, just as in Madrid, defendant's wife was not living at the residence at the time she gave consent.

Based on these facts, the Sullivan court held that Leber possessed common authority under Matlock. The court emphasized that Leber had retained a key to the residence and continued to exercise common authority. *34 The court stated that Leber's common authority was evidenced by her intent to return later, at her leisure, and remove her remaining property.

The facts which evidenced Gale Fisher's actual authority are equally compelling. [FN7] The Illinois Appellate Court erred in concluding that Gale Fisher could not give valid consent under Matlock, and in relying on property concepts in determining whether common authority existed. Accordingly, the Illinois Appellate Court's decision should be reversed.

FN7 See: United States v. Crouthers, 669 F.2d 635 (10th Cir. 1982); United States v. Long, 524 F.2d 660 (9th Cir. 1975); United States v. Lawless, 465 F.2d 422 (4th Cir. 1972).

*35 CONCLUSION

For the foregoing reasons, petitioner respectfully requests that this Honorable Court reverse the judgment of the Illinois Appellate Court and remand the case to the Circuit Court of Cook County for further proceedings.

JOINT APPENDIX

*i TABLE OF CONTENTS

Chronological List of Relevant Docket Entries ... 1

Transcript of Proceedings, August 18, 1986 ... 2

Testimony of Office James Entress

Direct Examination ... 3

Cross Examination ... 25

Re-Direct Examination ... 32

Testimony of Dorothy Jackson

Direct Examination ... 34

Cross Examination ... 52

Transcript of Proceedings, September 5, 1986 ... 61

Testimony of Gail Fisher

Direct Examination ... 62

Cross Examination ... 67

Re-Direct Examination ... 86

Transcript of Proceedings, September 17, 1986 Oral Ruling ... 93

Unpublished Order of the Illinois Appellate Court,

First District, January 11, 1989 ... 98

Order of the Illinois Supreme Court dated April 5, 1989, denying the People's Petition for Leave to Appeal ... 105

Order of the Supreme Court of the United States dated October 30, 1989, granting certiorari ... 106

*1a CHRONOLOGICAL LIST OF RELEVANT DOCKET ENTRIES

July 27, 1985 - Complaints filed in the Circuit Court of Cook County charging Edward Rodriguez with the battery of Gail Fisher and with possession of a controlled substance.

September 11, 1985 - Preliminary hearing held.

September 27, 1985 - Information filed in the Circuit Court of Cook County charging Edward Rodriguez with possession of a controlled substance with intent to deliver and possession of cannabis.

January 22, 1986 - Motion to Quash Arrest and Suppress Evidence filed by Edward Rodriguez.

August 18, 1986 - Hearing held on Motion to Quash and Suppress.

September 5, 1986 - Hearing continued on Motion to Quash and Suppress.

September 17, 1986 - Argument of counsel heard on the Motion to Quash and Suppress. Motion granted.

October 17, 1986 - Notice of Appeal filed by the People of the State of Illinois.

January 11, 1989 - Unpublished order of the Appellate Court of Illinois, First District, Third Division, affirming the trial court filed.

April 5, 1989 - Order of the Illinois Supreme Court denying the State's Petition for Leave to Appeal.

*2a STATE OF ILLINOIS

COUNTY OF COOK

SS:

IN THE CIRCUIT COURT OF COOK COUNTY

COUNTY DEPARTMENT-CRIMINAL DIVISION

EDWARD RODRIGUEZ, Petitioner,

vs.

THE PEOPLE OF THE STATE OF ILLINOIS, Respondent.

Indictment No. 85 C 10942

Before: JUDGE JAMES M. SCHREIER

Monday, August 18, 1986.

Court having reconvened pursuant to adjournment.

APPEARANCES:

MR. JAMES REILLEY and

MS. CHRISTINE CURRANS,

appeared on behalf of the Petitioner-Defendant;

HON. RICHARD M. DALEY,

State'sAttorney of Cook County, by MR. JAMES BIGONESS,

Assistant State's Attorney,

appeared on behalf of the People.

* * *

(p. 2) JAMES ENTRESS, called as a witness on behalf of the Petitioner- Defendant *3a herein, having been first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. REILLEY:

(p. 3) Q. Officer, will you please state your full first and last name and spell your last name for the court reporter?

A. James Entress. E-n-t-r-e-s-s. Star 8114, work out of the 9th District.

Q. Officer, as of July of 1985, how long have you been a Chicago Police officer?

A. July of '85?

Q. Yes?

A. Twelve and a half years.

Q. Now, calling your attention specifically, Officer Entress, to July 26, 1985, were you on duty on that date, sir?

A. Yes, sir, I was.

Q. Did you have occasion to go to the area of 3554 South Wolcott in Chicago, Cook County, Illinois on that date?

A. Yes, sir?

Q. Will you tell his Honor, Judge Schreier, what time you arrived at the location and why is it that you went there?

*4a A. We arrived there approximately 2:30 in the afternoon. A uniformed car had called for an assistance of a tact team.

Q. When you say "we" officer, can you tell us who was (p. 4) with you?

A. My partner Ricky Gutierrez.

Q. Spell the last name.

A. G-u-t-i-e-r-r-e-z. Star 7699.

Q. Plain closes [sic] or uniform on that date?

A. Plain clothes.

Q. You responded to a call from another officer, is that correct?

A. That's correct.

Q. What was the other officers name?

A. Officer Tenza. T-e-n-z-a. I believe.

Q. All right. Did you specifically speak to officer Tenza on a police radio before going there?

A. Yes, we did.

Q. Now when you arrived at 3554 South Wolcott with Officer Gutierrez was Officer Tenza already there?

A. Yes, he was.

Q. Did you go into a residence at that location?

A. Yes.

Q. And did you have a conversation with a Gail Fisher.

*5a A. Yes, sir.

Q. How long, if you know, was officer Tenza there prior to your arrival?

(p. 5) A. I don't know.

Q. Okay. Did you speak with Gail Fisher at that point, yourself?

A. Yes, I did.

Q. Will you tell the court please what you said to Gail Fisher and what she said to you.

MR. BIGONESS: Objection your Honor. Foundation.

THE COURT: Who else was present?

MR. BIGONESS: And time, if counsel can.

MR. REILLEY: Let me with draw that.

At the time you spoke with Gail Fisher and she spoke to you, officer, can you tell us what time it was?

A. It was around 2:30 In the afternoon.

Q. On July 26, 1985?

A. Yes that's correct.

Q. Who else was presence [sic] during the conversation?

A. My partner, Officer Gutierrez, Officer Tenza, Gail Fisher, and and and Dorothy Jackson.

Q. Do you know if Dorothy Jackson is Gail Fisher's mother?

*6a A. I believe stepmother.

Q. Stepmother? Okay.

A. I believe so.

Q. Other than those you have named, was anyone else (p. 6) present?

A. No, sir.

Q. Okay. Tell the court what you said to Gail Fisher and what she said to you or in your presence?

A. She stated to me that she - and I could see she had been the victim after battery. She stated -

Q. Tell us what she said?

A. She stated Edward Rodriguez earlier in the day had beaten her at their apartment at 3519 South California. She stated that she wanted to sign complaints. That all her clothes and her furniture were in that apartment and that she had her own key for the apartment. That she would open the door and allow us to go into arrest Eddie Rodriguez who was at the apartment at the time and she felt he was sleeping.

Q. Okay. Okay. Officer, when Gail Fisher told you that Eddie Rodriguez had been had beaten her earlier in the day can you be more specific if you recall what time she said thatoccurred?

A. The only thing I can remember on that, sir, is that she had said earlier in the day.

Q. Okay. Have you had a chance to refresh you memory as to the time by reading any police reports that were prepared with regard to that incident?

*7a (p. 7) A. The only place that would show what time it was would be on the original made by officer Tenza and I really haven't reviewed that.

MR. REILLEY: Okay. May I approach the witness, Judge?

THE COURT: Yes.

MR. REILLEY: Q. Officer I'm going to show you a group of police reports which were tendered to me in discovery. And one of them appears to be authored by Officer Tenza. Let me ask you if this report I'm showing you now is the report your referring to?

MR. BIGONESS: Objection your Honor. I'm not sure what counsel is trying to do. I think he's trying to refresh this officers recollection with another officers report.

MR. REILLEY: That's right.

THE COURT: You can refresh recollection by another officers report or you can refresh recollection by someone doing a hand stand in court. Doesn't have to be his own report to refresh recollection.

MR. REILLEY: Q. Officer will you take a look at that report please?

A. Okay.

Q. First of all, the report that you're looking at, can you tell the court if you have ever seen that report (p. 8) before?

A. I seen it on that date, yes, sir.

Q. What report does that - purport to be?

*8a A. This is an aggravated battery with the victim being Gail Fisher and the offender Edward Rodriguez from that date.

Q. Is this the report prepared by officer Tenza, to your knowledge, regarding the incident your testifying about?

A. To my know knowledge, yes, sir.

Q. In looking over the various boxes on the report. Is there any indication there as to the time that the alleged battery occurred?

MR. BIGONESS: Objection your Honor.

THE COURT: Overruled.

THE WITNESS: He has an occurrence of 26 July, '85 at 1100 hours which is 11:00 O'clock in the morning. But I don't ever remember being told that was the time.

THE COURT: So it doesn't refresh your collection?

THE WITNESS: No, it doesn't.

MR. REILLEY:

Q. You only recall that the victim Miss Fisher told you it was earlier in the day, July 26, 1985?

A. Yes, sir.

(p. 9) Q. Do you know when she called the police or if she - strike that.

Do you know if she called the police?

A. I really don't know who called the police.

*9a Q. Do you know when the police were called?

A. No, sir.

Q. When you received the radio communication from Officer Tenza, approximately what time of the day was it?

A. It was around 2:30 in the afternoon.

Q. Okay. And you went then to the Wolcott address and arrived there how soon after the phone call or the radio communication?

A. We were there within five minutes when he called for us.

Q. Did you ask Gail Fisher on that date, as you were speaking to her, where she was living?

MR. BIGONESS: Objection. At what point.

MR. REILLEY:

Q. The time you were speaking to her in my earlier question you were speaking with Gail Fisher at the residence at 3554 South Wolcott with your partner, Officer Gutierrez present, Gail Fisher present, yourself present officer Tenza present and Miss Jackson present. Do you recall that conversation?

(p. 10) A. I recall the conversation, yes sir.

Q. During that conversation, did you ask Gail Fisher where she was residing?

A. I had asked her - she stated where this occurrence - where this had occurred at 3519 South California. She further related to me stated to me that she - all her *10a property was there and that she had been living there. I didn't go into specifics with her as if she had just moved out or anything like that. But she stated to me she had been living there and that she has the key, her own key and that all her property was at that apartment.

Q. Officer, do you remember testifying at a preliminary hearing regarding people of State of Illinois versus Edward Rodriguez before the Honorable Judge John Morrissey on September 11 1985?

A. Yes, sir.

Q. Do you recall being asked certain questions by the state's attorney and myself and giving certain answers?

A. I remember to the best of my knowledge. The little what I can remember.

MR. REILLEY: Page sixteen, Counsel.

Do you remember me asking you this question during that hearing, page sixteen, line twelve.

(p. 11) "Q. Did Gail Fisher tell you she lived at 3510 South California?

A. She stated she used to live there.

MR. BIGONESS: Objection impeaching, Your Honor. That's exactly what he said. She had been living there.

MR. REILLEY: That's not what he said.

THE COURT: Overruled.

MR. REILLEY:

*11a Q. Do you remember giving that answer to that question, Officer?

A. Yes, sir.

Q. Now, was that the answer that you gave that day that she stated she used to live there?

A. To the best of my recollect, yes.

Q. Let me ask you this, officer.

On July 26, 1985, was it your impression that Gail Fisher no longer lived at 3510 South California?

A. No.

Q. It was not?

A. No.

Q. It was your impression she did or didn't live there?

(p. 12) A. It was my impression she lived there but she wasn't there that day that she had - she was there that day earlier and that's where the offense had occurred. So, my feeling was that she was still living there or she wouldn't have been there when the offense had occurred.

Q. Even though she told you she used to live there, is that right?

A. She stated she had been living there.

Q. Well, your answer was she used to live there, didn't did she say she used to live there or she had been living there. What did she say?

*12a A. To the best of my recollection, she stated that she had been living there.

Q. Now that's your recollection today on August 18, 1986, is that correct?

A. That's correct.

Q. Was your recollection better on September 11, 1985 of this incident or worse?

A. It could conceivably be better.

Q. Did you have a conversation with the lady who you have identified as Miss Jackson at the same time and place?

A. Yes, sir.

Q. Did Miss Jackson who you have described as her stepmother, tell you that Gail Fisher had been living (p. 13) there for at least three or four weeks prior to July 26, 1985?

A. No, sir she never told me that.

Q. She never told you that? Okay. How long were you at 3554 South Wolcott before you left and went to another location?

A. Approximately five, ten minutes.

Q. Okay. Did you eventually go over to an address of 3519 South California?

A. Yes, sir?

*13a Q. Prior to going to that address, did you have in your possession either a search warrant or an arrest warrant to either arrest or search the person and apartment at 3519 South California?

A. No, sir.

Q. Did you have a complaint signed by any victim of any alleged battery prior to going to 3519 South California?

A. No, sir.

Q. You went over to that address and you were there with officer Gutierrez and Officer Tenza, is that correct, sir?

A. We also had Miss Fisher and Miss Jackson with us.

Q. Okay. So there were five of you?

(p. 14) A. That's correct.

Q. How did you get into the apartment at 3519 South California?

A. Gail Fisher walked up to the door opened the door with a key, opened the door and allowed us entrance into the apartment.

Q. Let me go back to the conversation that you were having at 3554 south Wolcott with Gail Fisher and the others who you previously stated were present.

Other than what you have already stated was said at that time, was there anything else said by Gail Fisher concerning the incident that occurred earlier that day?

*14a A. Concerning the battery?

Q. Yes, sir.

A. Not that I can recall.

Q. All right. Did you -

A. Oh, yes, there was.

Q. There was? Please tell us what it was?

A. She had stated he had kept her in the apartment. I do not remember how how long, but he refused to allow her to leave the apartment.

Q. Your [sic] referring to July 26, 85?

A. Yes, sir.

(p. 15) Q. Okay. Did you testify earlier that she said that she thought Mr. Rodriguez was at home sleeping?

A. Yes, sir.

Q. Okay. You did say that. All right.

When you went to the location, did you check with the landlord to find out whose apartment it was?

A. No, sir. I did not.

Q. Did you ever determine prior to entering the apartment that the apartment was in the name of Edward Rodriguez?

A. No, sir.

Q. What was your purpose, officer, in going to the 3519 South California address on July 26, 1985?

*15a A. To arrest Edward Rodriguez for an aggravated battery.

Q. That's the same aggravated battery that you had no complaint signed, is that correct?

A. At that time, yes, sir.

Q. All right. Now, this was 2:30 In the afternoon, is that correct?

A. Approximately.

Q. What day of the we can [sic] was it?

A. I cannot recall.

Q. Was it during the week or was it on the weekend?

(p. 16) A. I can not recall.

Q. If I can refresh your memory as to that, that it was on a Friday, July 26, 1985, would that refresh your recollection?

A. If you say so.

Q. Now, July 26th is not a court holiday, is it?

A. Not to my knowledge.

Q. Being an officer for twelve and a half years, you're aware that there's a lot of judges in this building and in various other buildings throughout the Cook County area, is that correct?

A. Yes, sir.

Q. All right. Did you attempt, officer, to go have a complaint signed for aggravated battery or battery or *16a obtain an arrest warrant from any judge in the circuit court of Cook County prior to going over there?

A. No, sir.

Q. So, it's your testimony that Gail Fisher opened the door with a key she happened to have, is that correct?

A. She stated it was her key.

Q. Now, answer my question.

Did she open the door with a key that she happened to have? Did she put the key in the lock?

A. Yes, sir.

(p. 17) Q. And turn it?

A. Yes.

Q. The door was locked when you got there, isn't that true?

A. Yes.

Q. Okay. So you didn't have to kick the door down or anything? She opened it up with the key?

A. That's correct.

Q. Okay. Now, when the door was opened, what did you do?

A. We entered the apartment.

Q. Did you knock before you had Gail Fisher open the door with the key she had?

A. No, sir.

*17a Q. Did you ring the door bell, if there was one?

A. No, sir.

Q. When the door was opened, who entered first, if you recall?

A. I did.

Q. Before entering, did you call out the name Ed Rodriguez?

A. No, sir.

Q. did you call out anything?

A. No, sir.

(p. 18) Q. When you went inside, what room did you enter into?

A. The first room is technically, I guess it's a living room but they had a bed in the middle of it.

Q. That's the room you entered as you walk in the door?

A. Yes, sir.

Q. You were already over the threshold and into the apartment, is that correct?

A. That's correct.

Q. Did you see any persons in there?

A. No, sir.

Q. Did you call out anything?

A. No, sir.

*18a Q. Were the other officers namely Gutierrez and Tenza right behind you?

A. No, sir. Officer Tenza was securing the rear exits. He wasn't - he didn't go in when my partner and I went in.

Q. You and Officer Gutierrez went?

A. That's correct.

Q. How about Gail Fisher and Miss Jackson?

A. No. When she opened the door, she returned to the police vehicle.

(p. 19) Q. Now, you went into the living room area and your partner Gutierrez did. Did you say anything at that point did you call out any names?

A. No, sir.

Q. Where's the next place you went?

A. Right into a bedroom which is to the left of that room.

Q. Did you see Mr. Rodriguez in the bedroom?

A. Yes, sir.

Q. He was sleeping?

A. Yes, sir.

Q. How long were you in the apartment before you woke him up?

A. Probably anywhere from a half a minute to a minute and a half.

*19a Q. Half a minute to a minute and half? When you walked in the bedroom, did you have to wake him up by yelling or shaking him, calling out his name?

A. Yes, sir.

Q. In otherwords, he didn't hear you, apparently, that correct?

A. No, he did not.

Q. Isn't it a fact, officer that prior to waking him up, during that half a minute to minute and a half, that (p. 20) you and or your partner, had already looked through various items in various rooms and had seized what the state would seek to introduce into evidence against him in this proceeding, is that true?

A. We had - what do you mean by look through? You mean like physically handling?

Q. Physically handling, opening things up, retrieving things with your hands. Did you do any of that?

A. No, sir.

Q. Did you pick up any items which the state seeks to introduce into evidence, before you work [sic] up Mr. Rodriguez?

A. No, sir.

Q. Did you look in any brief cases in the bedroom?

A. Yes, sir we looked into two open brief cases.

Q. Okay. Was that before or after you work [sic] up Mr. Rodriguez?

*20a A. That was during the course of waking him up.

Q. You were looking in the brief case?

A. Yes. They were right at the foot of bed.

Q. Again you didn't have a search warrant to search that room or the contents of the room, did you?

A. No, sir.

Q. You found various items throughout the house that (p. 21) the state seeks to introduce into evidence namely control substance and or cannabis sativa, is that correct?

A. Yes.

Q. Find some in the bedroom?

A. Yes, sir.

Q. Without getting specific where they were, you found some in the living room?

A. Yes, sir.

MR. REILLEY: May I just have a moment, Judge?

THE COURT: Yes.

MR. REILLEY:

Q. Officer, as you entered the apartment, that is you and officer Gutierrez, you were in that living room where you have described a bed, you walked through that area prior to going into the bedroom, is that correct, sir?

A. That's correct.

*21a Q. And is it a fact, that you saw some items perhaps some Tupperware, in the living room which you looked into prior to going into the bedroom, is that true?

A. That's correct.

Q. You didn't expect to find Mr. Rodriguez in the Tupperware, did you?

A. No, sir.

THE COURT: Did you say you looked through the (p. 22) Tupperware.

THE WITNESS: The Tupperware was in plain and open view. It wasn't covered. We have - we had to walk past it to get into the bedroom.

THE COURT: All right.

MR. REILLEY:

Q. The point is, you did look into that - what you have described as being in plain and open view prior to going in to arrest Mr. Rodriguez, is that right?

A. Yes, sir, I did.

Q. And you went into the bedroom and then you look into these two attache cases, is that correct?

A. That's correct.

Q. That's again, before you woke up the defendant?

A. That's during the course of waking him up. We observed it - two attache cases at the side of the bed and as were reaching over waking him up, we can - we could look right into the attache case.

*22a Q. They open also just like the Tupperware?

A. Yes, sir.

Q. Going back to your conversation with Miss Fisher, at the other address on Wolcott, you have related to the best of your recollection, everything she said to you and you said to her about this incident, is that correct?

(p. 23) A. During the conversation about the - about arresting Ed Rodriguez, I had stated to her that we would only go in and lock him up if she was sure that she wanted to press charges on him. She was a little hesitant it seemed to me about signing complaints. So then, I had recalled a year earlier a conversation with someone concerning an Edward Rodriguez that -

Q. Who was the someone you had the conversation with a year earlier?

A. I cannot remember.

Q. Then I'm going to ask you this question and please answer my question -

MR. BIGONESS: I'll ask the witness be allowed to answer.

MR. REILLEY: I'm entitled to have an answer to my question. This is direct examination. Not responsive.

THE COURT: Ask the other - another question Mr. Reilley. If you want to have him finish any answer, you can on your examination.

MR. REILLEY:

*23a Q. My question, officer, was relating the conversation that you had with Gail Fisher. You were stating that you felt she was reluctant or she said she wasn't sure she wanted to sign a complaint, is that part of (p. 24) the conversation?

A. She was little hesitant, yes, sir.

Q. All right. Besides what you determined to be her hesitancy, did she say anything else to you? That's my question, her words?

A. I'm getting to that. That's what - what the conversation - you wanted the conversation.

Q. Tell me what she said. Just what she said. That's my question.

A. How can I give you what she said until I tell you what I asked her.

Q. Tell me what you asked her?

A. Okay. I asked her if Edward Rodriguez dealt in narcotics.

Q. Okay. You asked her that?

A. Yes.

Q. What did she say?

A. She didn't answer. And I said well if you're afraid, of us going in to your apartment and locking him up, then you tell us now and we won't go in there. And at this point, she thought for a few seconds and then she said no. She's says, "I want to sign complaints I want to go to court. I will open the door for you."

*24a Q. Okay. Then when you asked her about dealing in (p. 25) narcotics she didn't answer your question, is that correct?

A. That's correct.

Q. All right. And she said she wanted to sign a complaint?

A. Yes, she did.

Q. And to go to court, is that what she said?

A. Yes, she did.

Q. Did you take her over to the state's attorney's office, draw up a complaint, have her sign it in front of a judge before you went to the apartment?

A. No, sir.

Q. You weren't told by the way that Mr. Rodriguez was about to leave the country, were you?

A. No, sir.

Q. Okay. Did you take - Gail Fisher to the hospital before you went over to the apartment where you arrested the defendant? Yes or no?

A. No, sir.

THE COURT: Any further questions Mr. Reilley?

MR. REILLEY: Pardon me?

THE COURT: Any further questions.

MR. REILLEY: I believe I have nothing else at this time.

*25a THE COURT: All right. Mr. BIGONESS.

(p. 26) CROSS EXAMINATION

BY MR. BIGONESS:

Q. Now, officer, you received a call from a beat car requesting assistance on July 26, 1985, at about 2:30 In the afternoon, correct?

A. That's correct.

Q. And the location of that call was 3554 South Wolcott, correct?

A. Yes, sir.

Q. You proceeded to that location where you met Officer Tenza, Gail Fisher and Gail Fisher's mother, Dorothy Jackson, correct?

A. Yes.

Q. And you had a conversation with Miss Fisher, at that time, correct?

A. That's correct.

Q. And Miss Fisher told you that she had been living at 3519 South California, with Edward Rodriguez, correct?

A. Yes, sir.

Q. She also told told you that her clothes and furniture were still in the apartment at the time she was speaking with you, correct?

A. That's correct.

*26a Q. She - did she at any time refer to the apartment (p. 27) at 3519 South California as his apartment?

A. My recollection was she used their apartment and our apartment.

Q. So, at no time did she say his apartment. It was always in terms of our apartment or their apartment meaning -

A. That's correct.

Q. Okay. Now, you had a - had a short conversation with Miss Fisher at that location at 3554 South Wolcott at that time, correct?

A. Yes, sir.

Q. And after speaking with her, you and officer Gutierrez, officer Tenza, Miss Jackson and Miss Fisher all proceeded to 3519 South California, correct?

A. That's correct.

Q. Now, when you had that conversation with Miss Fisher, she told you that she had a key to their apartment, correct?

A. That's correct.

Q. Now, you testified that she initially showed some hesitancy to he [sic] sign a complaint against - well strike that.

You said that she showed some hesitancy. Hesitancy to sign a complaint or hesitancy to open the (p. 28) door?

A. She appeared to be afraid, intimidated by the offender. And I didn't know whether she was afraid to *27a open the door or whether she was afraid what would happen if she signed a complaint on him.

Q. All right. Now at any time did you or your brother officers or Miss Jackson for that matter ever pressure - exert any type of pressure on Miss Fisher to agree to sign a complaint or to open the door?

A. No, sir.

Q. And you testified that after you spoke with Miss Fisher, you were left with the impression that Miss Fisher lived there occasionally, were those your words or lived there -

A. She - from the conversation she lived there. I don't know whether she was living there, you know, every day, but she kept using the word "our" and "their" apartment. And she stated that this was her key.

Q. And after this conversation you went to 3519 South California where Miss Fisher opened the front door to the apartment at that location, correct?

A. Yes, sir.

Q. And you were present when she opened the front door, correct?

(p. 29) A. That's correct.

Q. And after she opened the front door she went - she left the area of the door, went back to the car and you entered the premises?

A. Yes, sir.

Q. And as you entered, you noticed something unusual in the living room, correct?

*28a A. Yes, sir.

Q. Now, you referred in your direct testimony to some Tupperware. That Tupperware had lids on it when you saw it for the first time or not?

A. No, sir, it did not.

Q. And after you went through the living room - by the way, did you notice anything else besides the Tupperware?

A. There was drug paraphernalia like scales and pipes laying scattered on the bed. On the table next to the Tupperware was a large scale.

Q. Did you notice anything inside the Tupperware?

A. Yes, sir.

Q. What was that?

A. A white powder that I suspected to be cocaine.

Q. Had you ever seen cocaine before this date?

A. Yes.

(p. 30) Q. Approximately how many times?

A. Hundreds.

Q. And this had the same appearance as the cocaine you observed on other occasions, correct?

A. Yes, sir.

Q. And the cocaine - white powder on other occasions turned out to be cocaine, isn't that correct?

A. That's correct.

*29a Q. After you left out of the living room, you then walked into which room?

A. Walked into the bedroom.

Q. What if anything unusual did you notice there?

A. At the foot of bed I observed two open attache cases.

Q. What did you see inside those attache cases?

A. Clear plastic bags containing the white substance.

Q. Was it similar in appearance to other white powder you saw in the living room and the other white powder you have seen hundreds of times in your duty as a police officer?

A. Yes, sir.

Q. What did you do after you noticed the attache cases open, if anything?

A. We woke up Edward Rodriguez, told him we were (p. 31) police officers, placed him under arrest advised him of his constitutional rights, and handcuffed him.

Q. Now, up to that point, had you even touched the Tupperware, the scales, paraphernalia or attache cases?

A. No, sir.

Q. After you placed this man under arrest, what happened, what did you do?

A. We brought him back out into the front room.

*30a Q. Did he say anything to you, at that time.

MR. REILLEY: I'll object. Were getting beyond the scope of the motion.

MR. BIGONESS: There's some additional evidence recovered -.

THE COURT: Overruled.

MR. BIGONESS:

Q. What if anything did Mr. Rodriguez say?

A. He asked if he could get his money out of a dresser drawer which was in the front room.

Q. All right. And what, if any action did you take?

A. I took him over to the dresser drawer and opened the drawer that he stated the money was in.

Q. And what if anything did you see?

A. I found approximately four hundred fifty-two dollars, USC co-mingled with another clear packet (p. 32) containing white substance.

Q. What did you do with the defendant after you found the money and the drugs in the dresser?

A. Had him transported into the 9 District.

Q. After he was transported, did you have occasion to inspect the premises you have just described at 3519 South California?

A. Only the bedroom and the - and that front room. We didn't go any further.

*31a Q. And was the material you have described the suspect cocaine, and the money and the paraphernalia all inventoried?

A. Yes, sir.

Q. By the way, officer, did Miss Fisher subsequently sign a criminal complaint against Edward Rodriguez.

MR. REILLEY: Objection. Relevance.

THE COURT: Overruled.

THE WITNESS: Yes, she did.

THE COURT: Complaint for aggravated battery?

THE WITNESS: No, sir. Simple battery.

THE COURT: Simple battery.

MR. BIGONESS:

Q. Why was not a complaint for aggravated battery submitted to Miss Fisher to sign?

(p. 33) A. A state's attorney from felony review would not approve the charge of aggravated battery.

THE COURT: Occurring that same date?

THE WITNESS: Yes, sir.

MR. BIGONESS:

Q. Now, officer, do you know what time - you, yourself, by the way of personal knowledge know what time the battery occurred to Gail Fisher?

A. All I know is it was earlier in that day.

*32a Q. Could have been 2:25, as far as you know?

A. As far as I know.

Q. And as far as that goes, you described on direct testimony the appearance of Miss Fisher. Could you describe that a little further? What did you notice about her that was unusual?

A. Her jaw was swollen and she had a black eye she had bruises on her neck. She looked like she was the victim of a beating.

Q. In fact she had sustained a broken jaw hadn't she?

A. Yes, sir.

MR. REILLEY: Objection. This is after the fact knowledge, Judge.

THE COURT: Sustained as to what he knew at the time.

MR. BIGONESS: Okay. Nothing further your Honor.

(p. 34) REDIRECT EXAMINATION,

BY MR. REILLEY:

Q. Officer, do you know who it was that contacted the state's attorneys office after the arrest of Mr. Rodriguez to attempt to obtain approval for aggravated battery charges?

A. It was an investigator but I really do not remember his name.

*33a Q. To refresh you, was it possibly investigator Scarpetto?

A. It could have been, yes, sir.

Q. Were you present when he did that?

A. Yes, sir.

Q. What time of the day was this?

A. I really can't remember.

Q. Let's say was it before 5 o'clock p.m.?

MR. BIGONESS: Your Honor I object to this line of questioning.

MR. REILLEY: He brought it out.

THE COURT: Well sustained. I think we have gone far enough.

MR. REILLEY:

Q. All right. My point is, officer, you didn't bother to call the state's attorneys office before you went (p. 35) to Rodriguez' apartment to get approval for aggravated battery or simple battery charges, is that correct?

A. No, sir.

Q. By the way, when you went into the apartment, and saw this Tupperware which you have previously described, did you immediately stop what you were doing[,] secure the apartment, and attempt to obtain a search warrant?

A. No, sir.

*34a MR. REILLEY: Nothing else judge.

THE COURT: Thank you officer. You may step down.

(witness excused)

THE COURT: Who are the next witnesses?

MR. REILLEY: Judge, I - there are no others today that I can call. I understand counsel has a deputy sheriff here who is apparently the mother or stepmother of the victim. And -

MR. BIGONESS: Just one other witness your Honor.

THE COURT: Call her right now.

MR. BIGONESS: I'd call her as my witness.

THE COURT: All right.

MR. REILLEY: I have no objection to that, Judge.

THE COURT: All right.

DOROTHY JACKSON, called as a witness on behalf of the People of the State of (p. 36) Illinois, having been first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MR. BIGONESS:

Q. Ma'am, would you please state your name and spell your last name?

A. Dorothy Jackson. J-a-c-k-s-o-n.

*35a Q. And speak up a little louder when you answer.

A. Yes, sir.

Q. Are you employed, Miss Jackson?

A. Yes, I am.

Q. Where are you employed?

A. Cook County Deputy Sheriff.

Q. Now, do you know a woman by name of Gail Fisher?

A. That's my daughter.

Q. And Id like to - strike that.

Where do you live, Miss Jackson?

A. I live at 3554 south Wolcott in Chicago.

Q. And who do you live there with?

A. Myself.

Q. All right. Now directing your attention to about July 1, 1985, who were you living with on that date?

A. I was living by myself.

Q. Now, did you happen to see Gail Fisher on July 1, (p. 37) 1985?

A. Yes, I did.

Q. About what time did you see her?

A. Well, probably the first time I saw her, it was in the morning when I was babysitting. You know, she would drop the children off for me to babysit.

*36a Q. She has children?

A. Yes.

Q. How many children does she have?

A. She had 2 girls.

Q. How old were they on that date?

A. Well they are 3 and 5 now. So they had to be about 2 and 4.

Q. Okay. And did you babysit for Miss Fisher?

A. Yes, I did.

Q. And were you baby sitting for her on July first 1985?

A. Yes, I was.

Q. And you're taking care the children the two children?

A. Yes.

Q. You said you saw Miss Fisher?

A. Yes.

Q. On July 1st, what time did you see her?

(p. 38) A. In the morning before she went to work because she only worked three blocks away.

Q. Okay. Approximately what time was it, if you recall?

A. Within an hour, I could say between 8:30 and 9:00. Between 8:00 and 9:00.

*37a Q. And did you have a conversation with Miss Fisher, at that time?

A. Not usually. She just dropped the children off and she went.

Q. How about on this date did you have a conversation with her?

A. Well, after I put the children to bed I was, you know, in the house and someone was coming up the back door. And you know that really startled me because no one usually comes in the house, right.

Q. Who was that person that came to the back door?

A. That was my daughter, Gail Fisher.

Q. Was she carrying anything?

A. She had - I don't know. She had something in her hands. Probably her purse. And - the - what really scared me is -.

MR. REILLEY: Objection, your Honor.

THE COURT: Sustained. Ask another question.

(p. 39) MR. BIGONESS:

Q. Did you have a conversation with Miss Fisher at that time?

A. Yes, I did.

Q. Okay. What if anything did she tell you?

A. Well, I asked her what she was doing home from work so early but then, she had her shorts on so I knew she couldn't have been at work.

*38a MR. REILLEY: I'll object to the -

THE COURT: What did she say. Just what did she say.

THE WITNESS: What did she say?

MR. BIGONESS:

Q. Did she say anything else to you, at that time?

A. She says, "we have to talk." She says, "Mom, we have got to talk."

Q. Okay. This is on July 1st?

A. Oh, no July first I'm sorry. No July 1st when she came back after work, she wanted me to move her out move her clothes out. She said that Ed was going to go to band practice. Was on a Monday night. And so, she had the key to the house. So, I stayed in the car with the children and she took like -

Q. She had the key to what house?

A. To her apartment where her clothes were.

(p. 40) Q. Where was her apartment on July [1]st, 1985?

A. Where was her apartment?

Q. Yes.

A. 35th and California. 3519 South California.

Q. So you went with her back to 3519 South California?

A. Yes, with her and the children.

*39a Q. What did she do when she went back on July 1st?

A. She had taken some black garbage -

Q. First of all, she had the key, right?

A. Yeah. She went in through the back. She - while I was waiting in the alley while she put some clothes and says she's going to get some clothes for the children and for herself.

Q. So so she used the key and entered the home?

A. Yes.

Q. Did she leave with anything?

A. Yeah she had like two or three baggies, what ever she could just grab real fast.

Q. And she went back to your apartment house, correct?

A. Yes, sir, she did.

Q. And she left the bags - by the way, what was inside the bags?

(p. 41) A. Clothing.

Q. She moved those to your house, correct?

A. Yes.

Q. Now, did she take everything she owned from the apartment at 3519?

A. No. I - I've got a two door car. She just took clothes. It was real fast. Just to get some clothes.

*40a Q. Now, what items if you know did she leave behind when she owned?

A. All her furniture.

Q. Anything else?

A. Her personal - all her personal things like her bills and - just everything. It was just getting the clothing. Her stove, refrigerator, table and chairs. Her couch that opens up to a bed, it was a sofa. The childrens bed and like a - maybe a three piece dresser.

Q. Dishes?

A. Her dishes, the china my mom had given her.

Q. At any time between July 1, 1985 and July 26, 1985, did she ever return to that location to retrieve the property you have just mentioned?

A. No. no. She would just go back there.

Q. Now, did you have a discussion about her move back with you?

(p. 42) A. On July 1st, that's when we moved her back.

Q. Okay. When you spoke to her, who else was present? Did - just you and her?

A. Yeah.

Q. This was at your house?

A. Yes.

Q. And where - what, if anything did she say about moving back with you?

*41a A. She said that Ed wanted the children - you know the baby was like about maybe not quite two years old because she would have been two in September. That he was getting irritated the fact that she was still on the bottle. The baby was still on the bottle and the diaper. And she was coming back - because he wanted the baby bottle broken and potty trained.

Q. And what would happen after the baby was bottle broken and potty trained?

MR. REILLEY: I'll object to -.

MR. BIGONESS: According to Miss Fisher.

THE COURT: Overruled.

MR. BIGONESS:

Q. What did Miss Fisher say would happen after the baby was potty trained and bottle broken?

A. That's the purpose of coming back home.

(p. 43) Q. What was she going to do after that point was reached?

A. She wasn't going to stay by me because it wasn't agreed she would continue to stay by me.

Q. Where would she go, according to you?

A. She'd have to go back to her apartment.

Q. Now, directing your attention to July 26, 1985, did you see your daughter, Gail Fisher, on that date?

A. July what.

Q. July 26?

*42a A. July 26th. That was on a Friday?

Q. I'm sorry. I don't know.

A. Okay. The 22nd was on a Monday, so it was a Friday.

THE COURT: What are we talking about, July -

THE WITNESS: 26th

THE COURT: 1985?

THE WITNESS: Yes.

MR. REILLEY: Judge, I'll stipulate it was a Friday.

THE WITNESS: Okay. She brought the children, you know. I had the children. Okay.

MR. BIGONESS:

Q. Well first of all let's back a day. On the 25th was she still living with you?

(p. 44) A. She was sleeping there.

Q. All right. Were there any nights between July 1st and July 26th when she did not return home to stay at your home?

A. On July 22nd, she left with the children. You know after -usually, she got off work about 4:00, 4:30. She left with the children. And she was going to meet Ed. And that night, Ed Rodriguez called me up and he was like out of breath saying, "Is Gail there? Is Gail there?" And I said well she went by you. And I said are you okay. Is everything okay and he hung up. A few minutes later Gail called me. I said, "Gail I thought you said you were *43a by Ed's." And she says - I said, "He just called." And she wanted me to say what I had cooked like she was being questioned about what I had cooked, was she really in the house and -

THE COURT: Ask another question.

MR. BIGONESS:

Q. Miss Jackson, at any time between July 1st and July 26, did Miss Fisher, to the best of your knowledge visit Edward Rodriguez at his apartment at 3519 South California?

A. Between July 1st and July 26th?

Q. Yes.

(p. 45) A. I believe so. I believe so because there were many times -.

MR. REILLEY: I'll object to that. What she believes.

THE COURT: Sustained.

THE WITNESS: She didn't always come home.

MR. BIGONESS:

Q. Now, directing your attention to July 26th, that would be the Friday, Miss Fisher was staying with you on that date, correct?

A. Right.

Q. And she got up in the morning?

A. She went to work.

Q. About what time did she go to work?

*44a A. Between 8:30 and 9:00, or sometimes she would leave late and I'd say Gail -

THE COURT: One second. Let me ask this. Between July 1st and July 26th did the children always stay at your house.

THE WITNESS: No. No.

THE COURT: How many days were they away from your house?

THE WITNESS: She would sleep over night, but if she took - but if she could take -

THE COURT: How many days did they not - how many (p. 46) nights did she not sleep at your house with the children?

THE WITNESS: Between July 1st and July 26th?

THE COURT: Right. If you can remember. Approximate.

THE WITNESS: To the best of my knowledge, if it was like two or three - three times because sometimes she wouldn't come home.

THE COURT: Two or three times? How many nights if any, would your daughter Gail Fisher not stay, sleep overnight at your house between July 1st and July 26th?

THE WITNESS: Oh, Okay. That's hard to say, your Honor. Because -

THE COURT: More than once.

THE WITNESS: Sometimes she'd come home 4:00, 5:00 in the morning. That's not sleeping overnight.

*45a THE COURT: How many times did she not come home to your house until 3:00 O'clock in the morning.

THE WITNESS: To the best of my knowledge, I'll say three to five times.

THE COURT: All right. Go ahead, Mr. Bigoness.

MR. BIGONESS:

Q. Now, on July 26, 1985, Miss Fisher appeared at your door, correct?

A. My back door.

Q. Okay. About what time was that?

(p. 47) A. It had to be between 1:00 and 3:00. More specifically, about 1:30 to 2:30.

Q. She appeared at which door?

A. She came up the back door. It was unlocked.

Q. And did you have a conversation with her on that date?

A. Yes. I -

Q. Who else was present?

A. The children were sleeping. They were taking their nap. I was alone in the kitchen and I heard someone walk up the back and -

Q. What if anything did Miss Fisher tell you at that time?

A. I just said, "You came home from work so early." And she said, "Mom, we have to talk." And that's when I *46a noticed her face. She already had the black eye from Monday.

Q. Can you describe her face?

A. Oh, God. It was terrible. I said, "My God, what happened to you?"

THE COURT: What did her face look like.

THE WITNESS: Her jaw was out to the side. She still had the black eye. And I really didn't look because I was upset. I was really upset but I did see her face was every distorted. Jaw bone was out to the side. She still had a (p. 48) black eye.

MR. BIGONESS:

Q. Then you had a conversation with Miss Fisher?

A. I said, "What happened?" She says, "Mom, we have to talk."

Q. Did you then talk to her?

A. Yes.

Q. What did she tell you?

A. She told me Ed Rodriguez had beat her.

Q. Did she go onto describe how the beating took place?

A. No, because I says, "Well, I'm calling the police again." I had called them Monday. I had called them -

Q. Okay. But on the 26th you then called the police

*47a A. I called the police. I said something's got to be done.

Q. Did the police subsequently arrive?

A. Yes they did.

Q. About what time did they arrive, if you recall?

A. From whatever time I called them it didn't take long. Five or ten minutes. I only called them one time and I probably would have called them again if she didn't come -

MR. REILLEY: Objection.

(p. 49) THE COURT: Just listen to the question and answer only the question that your [sic] listening to. Next question.

MR. BIGONESS:

Q. Now, did and [sic] Officer arrive after you called the police, right?

A. Yes, sir.

Q. That was a uniformed officer or plain clothes?

A. Regular policeman. Police car.

Q. Wearing his police gear?

A. Right.

Q. And do you remember that officer name, by any chance?

A. No, I don't.

Q. Could it have been Officer Tenza is that -

*48a A. That sounds familiar but I really wouldn't really know his name.

Q. Now, other police officers arrive shortly thereafter?

A. Yes. He made a call to get some help.

Q. Which officers were they, if you recall?

A. Now, those I remember. It was Officer Entress, Jim Entress and Rick Gutierrez.

Q. Now, when those officers arrived, a conversation took place between Gail Fisher and the police officers, (p. 50) correct?

A. Right

Q. And you were present for that conversation?

A. Yes, sir, I was.

Q. And to the best of your recollection, what did Gail Fisher tell the police officers?

A. She told them what happened.

Q. What did she actually say, though?

A. She said that he had beat her up. And -

Q. Did she name the person that beat her up?

A. Yes. Ed.

Q. All right. And what else did she say, if you can recall? Tell the court exactly her words.

A. Okay. I was having company coming at the same time so I didn't get to hear everything, okay.

*49a Q. Well, tell the court the parts you heard if you would?

A. Okay. She said that he beat her up and they wanted to know if she wanted to go over there and let them in. If she could let them in to get him. And she was hesitant and they said why has he got some - I'll use a difference word -

Q. What is the word the officer said?

A. Well, I - I don't talk that way. I don't want to (p. 51) say it, but another word for has he got crap in the apartment or drugs you know. And she says - just looked at them and then she said yes. And I said I believe he had it too. And that's why she was afraid to go -

THE COURT: Next question.

MR. BIGONESS:

Q. Now, when - did - well, strike that question.

You then entered a police car with the officers which had responded, correct?

A. Yes. My friend came over and I left him watching the babies.

Q. Then, you got in the police car?

A. Yes.

Q. You went over -

A. Gail and I went -

THE COURT: Let him ask the question.

Ask the question. Listen to his questions.

*50a MR. BIGONESS:

Q. You entered the police car and you drove to 3519 South California, correct?

A. Yes, sir.

Q. Once you arrived there, what did you see your daughter Gail Fisher do?

A. My daughter and I got out of the squad car and we (p. 52) went to the front door and Gail put the key and opened up the door and pushed door back. Took the key and I stayed by her until we both got in the squad car.

Q. Were there officers with you when your daughter opened the door?

A. Yes, sir.

Q. Which officers were they, if you recall?

A. It was Officer Entress Gutierrez and the officer that first came in the police uniform.

Q. Which officers went to the front door?

A. I know the two fact, Entress and Gutierrez did. I think the other officer went to the back door and it was locked, so he came back.

Q. Okay. Thank you.

And you testified that you went to the squad car and had a seat?

A. Yes.

Q. And then, - well what did you see when you went back to the police car?

*51a A. Well, we - I think it was like about five or ten minutes and then, -

MR. REILLEY: I'll object to - at that time this point. I believe it's beyond the scope of the motion.

THE COURT: Let her finish her answer to this question.

(p. 53) THE WITNESS: It was about five, ten minutes. Ed Rodriguez came out handcuffed with the officers gave us a dirty look.

MR. REILLEY: Ask that that be stricken, Judge.

THE COURT: Overruled.

THE WITNESS: That's what I said.

THE COURT: Next question.

MR. BIGONESS: Just one more question Miss Jackson.

During the time that your daughter was conversing with the police officers, did you ever hear her refer to the apartment at 3519 South California -

MR. REILLEY: Objection to leading question that's about to happen, Judge.

THE COURT: Sustained. Ask simply a question in terms of how she referred, if at all to the apartment, on California.

MR. BIGONESS:

Q. Miss Jackson did you ever hear your daughter refer to the apartment at 3519 South California? Did you ever hear her talk about it?

*52a A. About her home?

Q. About 3519 South California?

A. That was her home.

Q. Did she ever refer to the apartment, though? Did (p. 54) she ever mention it when she was talking to the police officers?

A. That's where she was living with him.

Q. The answer is, "Yes" then, correct?

A. Yes. That's where she was living with him.

Q. Did she ever refer to it as his apartment?

A. No.

Q. How did she - whose apartment was it in her conversations with the police officers.

THE WITNESS: Our apartment.

MR. BIGONESS: Nothing further your Honor.

REDIRECT [sic - CROSS] EXAMINATION

BY MR. REILLEY:

Q. Miss Jackson the morning of July 26, 1985, that being the date that Mr. Rodriguez was arrested?

A. Yes.

Q. You said you saw your daughter that day - I'm sorry about 1:30 or so in the afternoon, is that correct, approximately?

*53a A. Yes, sir.

Q. Prior to that time and date, when was the last time you you saw your daughter? Do you understand my question?

A. Oh, yes, sir.

(p. 55) Q. Prior to seeing her coming up and you saw the injury that you have described, when was the last time you saw her before that?

A. That morning.

Q. What time?

A. When she was supposed to be going to work probably around - between 8:30 and 9:00 o'clock.

Q. All right. Is it a safe assumption then she slept in your home on July 25, 1985 is that correct?

A. Give me time to think. Yes.

Q. In other words the day before, she stayed over at your house?

A. Yes.

Q. How about the day before that?

A. The day before that too, she got up and went to work.

Q. Okay.

A. Now Thursday, okay. I'm trying to say the day. When you say the day before that I want to be specific. Thursday, yes she went to work.

*54a Q. Okay. By that she went to work leaving from your residence, correct?

A. Right.

Q. To make no mistake about it, your residence is (p. 56) 3554 South Wolcott, is that correct?

A. Yes, sir.

Q. Now -

A. She didn't go to work Thursday.

Q. Just listen to my question though, okay?

I believe Honor [sic] Honor, Judge Schreier, asked you a question. I'm not quite sure I understand your answer, so I'd like to just clarify something.

A. Okay.

Q. On July 1, 1985, I believe it's your statement, your testimony, that your daughter, Gail Fisher brought the two children over to your residence that you had some conversation and that at that point for that period of the month of July of last year, she was living with you with her children, is that a fair statement?

A. From July first -

Q. Is that correct?

A. Is when she brought the clothes.

Q. That's when you went back - did you go over there with her to get the clothes?

A. Yes, sir.

*55a Q. All right. So, am I correctly describing this? That she move back in with you, is that correct?

A. She took three bags of clothes. That's all.

(p. 57) Q. Did she stay in your house from July 1, 1985 until the morning of July 26, 1985, the incident in question, did she stay there every night whether it was midnight or 3:00 in the morning?

A. On and off for those three weeks, sir.

Q. During that three weeks or three and a half weeks period of time, were there any nights she did not come home at all?

A. I would have to say to the best of my knowledge like two or three nights.

Q. The rest of the times which would mean another twenty-three days, approximately she stayed over at your house is that correct?

A. Yes.

Q. How about the two children, were they there and on each and every evening between July 1st and July 26th?

A. Unless she stayed out with them overnight, no.

Q. You say perhaps you recall two or three times that she might not have come home until maybe 3:00 O'clock in the morning?

A. Right.

Q. But she did come home and sleep at your house, is that correct?

*56a A. Yes.

(p. 58) Q. Even if it was -

A. Even if it was for a couple of hours you mean?

Q. Yes.

A. Yes.

Q. Did she have a bedroom in your residence?

A. No, sir.

Q. Where did she sleep?

A. She slept on the couch.

Q. Okay. Where did the children sleep?

A. I had a bed in one bedroom that my mom was staying with me, one of the daughters slept there. The other one slept on the floor on top of a mattress, because I didn't have the crib.

Q. Is Gail Fisher your natural daughter or step-daughter.

MR. BIGONESS: Objection.

THE WITNESS: She's not my daughter.

THE COURT: Overruled.

MR. REILLEY:

Q. She's your natural daughter?

A. No. I adopted her when she was three days old.

Q. By the way, you know who Edward Rodriguez is, don't you?

*57a A. The man in the yellow shirt sitting next to you.

(p. 59) Q. You have known him for a long period of time?

A. I know him since October, '84.

Q. October of '84? Okay.

A. I think it was October, '84 when he first - I first saw him at my daughters apartment which he lived next door.

Q. Next door to who?

A. Next door to me.

Q. Did you ever hear your daughter, Gail Fisher, tell the police officers who were there at your residence on July 26, 1985, that she was the victim of a battery namely she was beaten by Mr. Rodriguez?

A. Gail didn't use that -

Q. Let me finish my sentence.

That she described what occurred at the apartment but that she told the police she didn't live there any longer but she used to live there?

Do you recall her saying that?

A. She didn't say that.

Q. She didn't say it?

A. No.

Q. You didn't hear all the conversation of Gail with the police because -

*58a A. Gail doesn't talk -

(p. 60) Q. Let me finish my question and I'll let you answer.

A. Okay, sir.

Q. You weren't present for everything Gail Fisher said to the police on that morning, is that true?

A. I was right in the front room.

Q. Did you hear everything she said?

A. About 99 and nine tenths because I had to open the door and let this man in.

Q. That means you didn't hear everything she said, is that true?

A. Go ahead. You got it.

Q. Is that true.

THE COURT: She said 99 and nine tenths.

MR. REILLEY: Yes, sir.

Well, Miss Jackson just one last question. It is in fact true that Gail Fisher was living with you on July 26, 1985, is that correct?

A. She slept there sometimes.

MR. BIGONESS: Objection.

MR. REILLEY: Thank you.

MR. BIGONESS: Objection calls for a conclusion.

THE COURT: "She slept there sometimes" will stand as the answer.

*59a MR. REILLEY: Let me [sic] ask this. "Sometimes" means out of (p. 61) that twenty-six day period -

MR. BIGONESS: Objection to "sometimes." Speaks for itself.

THE COURT: Wait a second. You're a witness, miss.

THE WITNESS: I know but -

THE COURT: Now, you're going to - your commentary is not asked for nor wanted.

THE WITNESS: Okay. Thank you.

MR. REILLEY: I have no further questions.

THE COURT: Past testimony has already specified in detail exactly what was meant by that phrase.

MR. REILLEY: Yes, sir. I have nothing else, Judge.

MR. BIGONESS: No redirect.

THE COURT: Step down. Is there another witness today?

MR. REILLEY: No, sir.

THE COURT: Okay. Let [sic] give it a date then for further witnesses in this matter.

What date Mr. Reilley do you suggest?

MR. REILLEY: May I just check here. If your court calendar would permit something right after the Labor Day weekend.

THE COURT: How is September 4th? Do we have anything set that day or the 5th for that matter. The 4th or 5th, I (p. 62) would say, Mr. Reilley.

*60a MR. REILLEY: I have a couple of matters in the building on the 4th, but I think one might be another motion so the 5th would be better for my schedule.

THE COURT: That's fine. By agreement, September 5th to conclude the motion.

MR. REILLEY: Thank you, Judge.

THE COURT: All right. Thank you.

(whereupon the above-entitled cause was continued to the 5th day of September, A.D., 1986)

*61a (p. 64) STATE OF ILLINOIS

COUNTY OF COOK

SS:

IN THE CIRCUIT COURT OF THE COOK JUDICIAL CIRCUIT

COOK COUNTY, ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS

vs.

EDWARD RODRIGUEZ

Case No. 85-C-10942

Charge: Del. Ctr. Subs.

MOTION TO SUPPRESS EVIDENCE

REPORT OF PROCEEDINGS had before the HONORABLE JAMES M. SCHREIER, Judge of said court, on the 5th day of September, 1986.

APPEARANCES:

HONORABLE RICHARD M. DALEY,

State's Attorney of Cook County, by: MR. THOMAS GIBBONS,

Assistant State's Attorney,

appeared for the People;

MS CHRISTINE CURRAN,

appeared for the Defendant.

Mary M. Flagg, CSR

Official Court Reporter

2650 S. California Avenue

Chicago, Illinois 60608

* * *

*62a (p. 66) GAIL FISHER, a witness called on behalf of the Petitioner- Defendant, having been first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY MS. CURRAN:

Q Miss Fischer, would you please state your name and spell your last name for the court reporter?

A Gail Fischer, F-i-s-c-h-e-r.

Q And Miss Fischer, where do you live?

A 3725 South Paulina.

Q Who do you live there with.

MR. GIBBONS: Judge, I will just object as to her current living situation. I'm sorry her address came out.

THE COURT: Sustained as to who she currently lives with.

BY MS. CURRAN:

Q Drawing your attention to July 1, 1985, Miss Fischer, where did you live on that day?

A With - I moved in with my mother that day.

(p. 67) Q Immediately prior to moving with your mother on that day where did you live?

A 3519 South California.

Q And who did you live there with at that time?

A Edward.

Q What's the last name, please?

A Rodriguez.

Q Do you see him in court?

*63a MR. GIBBONS: Stipulate to the identification, Judge.

THE COURT: So stipulated.

BY MS. CURRAN:

Q Did anyone else live there beside you and Mr. Rodriguez?

A My two children.

Q Now on July 1, 1985 what happened unusual, if anything?

A My friend came over and she helped me get all my clothes out of his apartment.

Q Your friend came over to Mr. Rodriguez' house, and about what time of day was that on July 1?

A Maybe around 6 o'clock.

Q That's in the -

A Evening.

(p. 68) Q P.M.

A Yeah.

Q And you removed your clothes, is that right?

A Yes.

THE COURT: This is July 1, 1985.

MS. CURRAN: That's correct, Judge.

Q And did you remove your children's clothes?

A Yes.

Q And from 3519 South California where did you go?

A 3554 South Wolcott.

*64a Q Who lives there?

A My mother.

Q And did you move in with her mother on that date?

A Yes.

Q When you left 3519 South California on July 1, 1985, did you have a key to the apartment on California?

A No. I left - No.

Q What did you do with the key that you had been using?

A I left it in the apartment.

Q Now drawing your attention to July 26, 1985, (p. 69) what, if anything, happened on that day?

A We had an argument.

Q Who do you mean by we?

A Me and Ed.

Q And after the argument what did you do?

THE COURT: May we know where the argument took place on July 26?

MS. CURRAN: I'm sorry, Judge.

Q Where did the argument take place on that date?

A 3519 South California.

Q That was Mr. Rodriquez' apartment?

A Yes.

Q And after the argument what did you do?

A Went home.

Q By home, what address are you talking about?

*65a A 3554 South Wolcott.

Q That's where you were living with your mother, is that right?

A Yes.

Q And what did you do when you got to your home?

A Walked in the house and my mother asked me what had happened.

(p. 70) Q Did you do anything after you got to your mother's house?

A She called the police.

Q And did the police come to your mother's house?

A Yes.

Q And when the police came to your mother's house then what happened.

I'm sorry. Go ahead.

A Then we went to Mr. Rodriguez' apartment.

Q Who went to Mr. Rodriguez' apartment besides yourself?

A My mother, the police officer, Jim Entress (phonetic spelling) and Rick Gutierrez.

Q How many police officers were there?

A When we first got there there were - The three and then I think there might have been another one that came after.

Q Did you tell any of those police officers on July 26, 1985 that you were living at 3519 South California?

A No.

Q Before you left your mother's house on July 26 did you have a key to Mr. Rodriguez' apartment?

*66a (p. 71) A Could you repeat the question.

Q Before you left your mother's house on July 26, 1985 did you have a key to Mr. Rodriguez' apartment?

A Was this - After the police came?

Q Yes?

A Yes.

Q When did you get that key?

A That day when I left his house.

Q Who do you mean by his.

Q Mr. Rodriguez' house?

A Yes.

Q You took the key from Mr. Rodriguez' apartment, is that right?

A Yes.

Q Where was the key?

A On his dresser.

Q Did Mr. Rodriguez give you the key?

A No.

Q Was he present in the room when you took the key?

A Not in the room.

Q Did you tell him that you were taking the key?

(p. 72) A No.

Q Did he give you permission to take the key?

A No.

Q Now back to your mother's house on July 26, 1985, prior to going over to Mr. Rodriguez' house on that day did you sign any complaints against him for battery?

*67a A I don't remember.

Q Did you go to Mr. Rodriguez' house straight from your mother's house?

A Yes.

Q Do you remember before you left your mother's house whether or not you signed any papers?

A I don't really remember.

Q Now when you went to 3519 South California on that date what happened?

A I let the police in and I went -

Q Now how did you let them in?

A With the key that I had taken off his dresser.

Q That was the key that you had taken earlier that day?

A Yes.

Q At any time on July 26, 1985 did you tell the (p. 73) police any of the those police officers that you lived at 3519 South California?

A No.

MS. CURRAN: I believe I have no further questions at this time, Judge.

THE COURT: Cross-examine.

CROSS EXAMINATION

BY MR. GIBBONS:

Q Miss Fischer, how long have you known the defendant here?

A About two and a half years.

Q And at some point at least you were living - sleeping and living with your kids in the apartment with him, is that correct?

*68a A Yes.

MS. CURRAN: Judge, I'm going to object to "at some point".

THE COURT: Yeah. See if you can be specific at least in terms of a month Mr. Gibbons.

MR. GIBBONS: Judge, I was going to do that with my next few questions if I had an opportunity.

Q Were you living with him in the apartment at some point, ma'am?

A Yes.

(p. 74) Q And when was that?

A I moved in December of '84.

Q December of 1984?

A Yes.

Q Were you living there in December of '84?

A Yes.

Q Were you living there in January of '85?

A Yes.

Q February of '85?

A Yes.

Q March of '85?

A Yes.

Q And April of '85?

A Yes.

Q May of '85?

A Yes.

Q June of '85?

*69a A Yes.

Q And during all that time that you lived there you were there with your children, is that correct?

A Yes.

Q And how many children were you there with?

A Two.

Q And what are their names?

(p. 75) A Jennifer and Jacqueline.

Q After during that time period you had an stove, refrigerator there. Stove and refrigerator?

A Yes.

Q You had a table and chairs there?

A Yes.

Q Did you have a -

MS. CURRAN: I'm going to object to this. This is beyond the scope of my district exam.

THE COURT: Overruled.

BY MR. GIBBONS:

Q Did you have a couch that opened up like a bed there?

A It was my ex-husband's.

Q Well you had a couch there that opened up like a bed?

A It didn't belong to me.

Q Well who put the couch in there?

A Ed had bought it off of my ex-husband.

Q And did your children have a bed there?

*70a A Yes.

Q And was there any dressers there belonging to you and your children?

A The Children, yes.

(p. 76) Q What about dishes? Were the dishes there?

MS. CURRAN: Judge, I'm objecting on the ground that anything that happened before July 1, 1985 is beyond the scope of my direct and it's not relevant.

THE COURT: Well, it might not - It might end up to be not relevant but I imagine that it's going to be tied in.

BY MR. GIBBONS:

Q Were your dishes there, ma'am?

A Yes, I had some china there.

Q Now on July 1 you and the defendant here, there was a fight between you - between the two of you, correct?

A On what date?

Q June 30, July 1, right in that time?

A No. That was just the day that I moved out.

Q At some point prior to your moving out moving out he beat you up, correct?

MS. CURRAN: Objection, Your Honor. I don't know the scope and issue.

THE COURT: Overruled.

BY MR. GIBBONS:

Q That's right?

A We had an argument.

(p. 77) Q Well, didn't you move out because he beat you up?

*71a A Because we used to fight.

Q And in fact, he physically beat you up at about on or around July 1, correct?

A No.

Q When did he beat you up?

A The -

MS. CURRAN: Objection, Judge. She didn't say that he beat her up. That's putting words in the witness' mouth.

THE COURT: She can deny it if it never did exist but you were about to answer. You may answer.

BY MR. GIBBONS:

Q Did he beat you up, ma'am, or not?

A The end of July?

Q What about at the beginning of July or the end of June?

A No.

Q He never beat you up before the end of July, is that right?

A We had fights.

Q Where he hit you, correct?

A He'd slap me.

(p. 78) Q And it was because of his slapping you and fighting with you that you moved out, according to you anyway, on July 1?

MS. CURRAN: Objection, Judge. Whyshe moved out is totally irrelevant.

THE COURT: Sustained.

BY MR. GIBBONS:

*72a Q Well on July 1, ma'am, when you say you moved out you took clothes with you, is that right?

A Yes.

Q And clothes for your kids?

A Yes.

Q Did you leave behind a stove.

MS. CURRAN: Objection. Asked and answered.

THE COURT: Overruled.

BY MR. GIBBONS:

Q Was the stove still there?

A Yes.

Q Was the refrigerator still there?

A Yes.

Q Were the dishes, the china that your mother gave you, was that still in the apartment?

A Yes.

Q Was the dressers that you and your children (p. 79) used, were they still in the apartment?

A Yes.

Q So the only thing that you moved out of the apartment at that time was clothing, is that correct?

A Yes, that's correct.

Q Everything else that you owned was still in the apartment, correct?

A Yes.

Q Now between July 1 and July 26 you were back at the apartment, were you not?

*73a A Yes.

Q And in fact you saw the defendant there almost every day, didn't you?

A Yes.

Q And in fact -

THE COURT: Saw him every day at the apartment?

BY MR. GIBBONS:

Q At the apartment, isn't that right?

A Yes.

Q And in fact sometimes you would be there late into the night, isn't that right?

A Yes.

Q And in fact on occasion you stayed over there, isn't that right, slept the night there?

(p. 80) A I don't really recall, but I believe I probably did.

Q Now prior to July 26, 1985, the defendant punched you in the face, didn't he, earlier in the week?

A Yes.

MS. CURRAN: Object as to prior.

THE COURT: Overruled. "Yes" will stand.

BY MR. GIBBONS:

Q And he gave you a black eye, didn't he?

A Yes.

Q And on July 25 of 1985 he beat you up so badly that he broke your jaw, isn't that right?

A It was the 26th.

*74a Q On the 26th, in the morning of the 26th?

A Yes. Sometime during the day of the 26th.

Q Where did he beat you up, ma'am?

A 3519 South California.

Q That was the apartment where he was living?

A Yes.

Q And you were there with him at that time?

A Yes.

Q On July 26th?

A Yes.

(p. 81) Q And all of these personal items that belonged to you were they still there, the furniture and the refrigerator and the stove and beds and the dressers and the couch, were they all still in the apartment at that time?

A Yes.

Q And it was after he beat you up that you went over to your -

THE COURT: What bed is it you're speaking of, Mr. Gibbons again.

BY MR. GIBBONS:

Q Whose bed was in the apartment?

A I had one bed.

Q Which bed?

A The children's bed.

Q And was the mattress on the bed?

A I - I suppose.

*75a Q Well the child slept on a mattress when she slept on the bed, didn't she?

A Yes.

Q Now after he beat you up in the apartment on California you went over to your mother on Wolcott, right?

A Yes.

(p. 82) Q And it was at that time that you decided to move the rest of the things that belonged to you from the apartment on California, correct?

A