Acting in part on an anonymous tip, members of an Illinois State Police special unit found marijuana and an indoor grow operation in a St. Charles home after a search in December 2015.
But the seized contraband cannot be used in the case against Derek J. Sutcliffe, 31, and his brother, Joseph W. Sutcliffe, 27, because the search violated the Fourth Amendment protection against unreasonable search and seizure, a judge has ruled.
"It was a very thorough ruling, well thought out and she followed the law," defense attorney Kathleen Colton said of the ruling by Kane County Judge Linda Abrahamson Wednesday to suppress evidence in the case.
Abrahamson ruled members of the North Central Narcotics Task Force, a unit of the state police, did not have permission from a woman who answered the door to go beyond the foyer at the home on the 6N0-99 block of Denker Road.
She also ruled officers did not have cause to perform a protective sweep of the home in which they saw a backpack of marijuana in a closet and later used that information to get the warrant.
According to court testimony, the officers went to the home Dec. 8, saying they were investigating an indoor marijuana growing operation. Because it was cold, the woman invited them into the foyer. But they followed her deeper into the home when she went to the bedroom of Joseph Sutcliffe, who was playing a video game.
As Joseph Sutcliffe was being questioned, his brother came home from work and said no to a search after calling his lawyer.
The officers said they would get a search warrant anyway, and the Sutcliffes and the woman could not stay at the home until it had been searched.
Officers then conducted a protective sweep to ensure no one else was at the home, according to testimony.
"The arrest and danger to the police has to be there and (the judge) found neither of those were present (for a protective sweep)," Colton said. "If you excised the illegal information from the (police) affidavit, it was insufficient for the search warrant to stand."
Derek Sutcliffe faces charges of possession of up to 2,000 grams of marijuana and growing up to 50 plants; Joseph is charged with possession of up to 500 grams of marijuana and a controlled substance. All charges are felonies.
The Sutcliffes are free on bond and next due in court Aug. 10 at which time the charges could be dismissed if prosecutors don't appeal.
The Kane County state's attorneys' office said it is reviewing the case and no decision has been made on its next step.