A trio of Vernon Hills residents are in police custody after officers used an obscure legal loophole to conduct a warrantless search of the premises.
Officers approached the residence of 33-year-old Dmitry Kolesnikov to perform an unprompted wellness check, because they suspected that he was intoxicated. During the course of a subsequent search, they found an unspecified number of marijuana plants in the basement. Using that discovery to obtain a search warrant, officers returned some time later and recovered 17 marijuana plants, along with over $2,000 in cash and some other illegal drugs. Based on this evidence, officers also arrested Mr. Kolesnikov’s wife, 39-year-old Ekaterina Kolesnikova, and Mr. Kolesnikov’s housemate, 40-year-old Ilya Tanich. Ms. Kolesnikova did not reside in the home where the drugs and other contraband were found.
In announcing the arrests, Police Chief Patrick Kreis said that “several other law enforcement agencies” participated in the “investigation,” but a spokesperson declined to give any details.
Wellness Checks and Warrantless Searches
Our founding fathers considered the prohibition against unreasonable, warrantless searches and seizures to be one of the most important rights of citizens, which is why the Fourth Amendment contains just such a prohibition. For the most part, courts are anxious to enforce this prohibition, especially in light of imbroglios like the one involving the Cook County Adult Probation Department, unless an exception applies.
Wellness checks are one such exception. These incidents normally arise when someone asks police to check on a neighbor or relative who is not answering the door or the phone, but as in the above case, sometimes law enforcement initiates these public service checks on their own initiative. The Supreme Court authorized these searches in 1973’s Cady v. Dombrowski, and over the years, Illinois courts have expanded the rule even further, even upholding the warrantless searches of unarrested passengers in DUI cases. There are two basic elements:
- Reasonable Belief: In this story, officers arguably had a reasonable basis for entering the house to make sure that the intoxicated individual was not taking care of minor children. Entering the basement, however, may be a bit of a stretch.
- Imminent Threat: An imminent threat usually involves either a deadly weapon or reckless conduct, neither of which appeared to be present in this case.
The cryptic reference to “other law enforcement agencies” gives this case another dimension. If police had targeted the residence, lacked probable cause to obtain a search warrant, and used the wellness check as a pretext to search the residence, that backstory might change the tenor of the case, at least in the minds of some jurors.
Legal Title and Legal Possession
There is essentially a presumption in the law that owners know about the goings on at property that they own, but this presumption only goes so far.
If Mr. Kolesnikov and his wife had just separated a few days or weeks earlier, it is logical to assume that she knew about the contraband in the house, and perhaps even logical to assume that the contraband was the basis for their separation. If the pair had been estranged for several weeks, it may be logical to assume that she knew about drug activity at the house, but knowledge of specific items in a specific location is unlikely. If the couple had been separated for several months, it is logical to assume that she knew nothing about drug activity or contraband.
Possession requires knowledge and also control. If Ms. Kolesnikova no longer had a key to the house, control would be almost impossible to establish beyond a reasonable doubt.
Reach Out to Experienced Attorneys
Drug cases often involve intricate search and seizure issues. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.
(image courtesy of Todd Quackenbush)