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People v. Hart9/16/1980
abinet was searched but no evidence was retrieved therefrom. The defendant then was asked to and did open the car hood and the officers felt the radiator and hoses which were too hot to hold. The officers requested permission to search the car and trunk. The keys were obtained from the defendant's wife in the house and the defendant opened the car and trunk and permitted a search thereof. The defendant's wife permitted Captian Leggett and a third officer who had arrived to re-enter the house and upon inquiry, led the officers upstairs to see defendant's gun cleaning kit in a closet. She then led them into a bedroom, where a wastebasket was found containing empty shell casings and Kleenex or toilet paper which was soaked with oil and black residue. Defendant's wife permitted the officers to take the wastebasket and its contents. The officers then left the house with defendant in custody.
• 1, 2 Addressing the first aspect of the first issue, defendant contends his arrest was the result of a warrantless, nonconsensual entry into his house and that the physical evidence resulting therefrom should have been suppressed. Defendant cites the fourth amendment, several United States Supreme Court cases and, most notably, the recent decision in Payton v. New York (1980), 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371. In Payton, the supreme court held that in the absence of exigent circumstances, and notwithstanding probable cause and statutory authority, the fourth amendment prohibits the police from making a warrantless, nonconsensual entry into a suspect's home in order to make a routine felony arrest. By Illinois statute, arrests based on probable cause are permitted anywhere within the jurisdiction of the State absent either a warrant or consent. (Ill. Rev. Stat. 1979, ch. 38, par. 107-2(c), par. 107-5(c) and (d).) At least two recent Illinois cases, People v. Bean (1979), 73 Ill. App.3d 918 and People v. Taylor (1979), 68 Ill. App.3d 776, considered the question of warrantless, nonconsensual entry into a private dwelling to make an arrest to be unsettled in Illinois. One Illinois case, People v. Abney (1978), 58 Ill. App.3d 54, held similarly to Payton, but that holding was seemingly contrary to numerous previous cases which permitted such arrests absent exigent circumstances and even though there was time to get a warrant. (People v. Johnson (1970), 45 Ill.2d 283; People v. Fisher (1979), 76 Ill. App.3d 331; People v. Bell (1976), 41 Ill. App.3d 233; People v. Ortiz (1975), 35 Ill. App.3d 283; People v. Franklin (1974), 22 Ill. App.3d 775.) Abney was appealed to the Illinois Supreme Court and that court's opinion was delivered during the pendency of this appeal. The court in Abney stated essentially that prior Illinois cases dealing with the issue of warrantless arrests in private dwellings pursuant to sections 107-2(c) and 107-5(c) and (d) (Ill. Rev. Stat. 1979, ch. 38, pars. 107-2(c) and 107-5(c) and (d)) caused the additional requirement of "exigent circumstances" to be judicially engrafted upon the statute which, on its face, requires only probable cause. The court said:
"Although this court in Johnson, Sprovieri and Barbee did not use the phrase `exigent circumstances' and even expressed some doubts about the exigent-circumstances requirement (see, e.g., People v. Johnson (1970), 45 Ill.2d 283, 287-88), it appears that the principles of the exigent-circumstances rule were adopted in those cases and that the requirements of the rule, by virtue of constitutional restrictions, have been judicially engrafted upon the statute. The statute, as construed, is thus in compliance with the constitutional guidelines enunciated in Payton." (People v. Abney (1980), 81 Ill.2d 159, 167-68.)
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