Tags: Geneva Linn
August 21, 2012 | 02:18 PMELKHORN — A defense attorney is attempting to toss out evidence that was discovered during a search of an alleged mushroom grower's rental unit in the town of Geneva.
Ian B. Henning, 34, Elgin, Ill., faces multiple felony charges after police allegedly found an illegal mushroom growing operation and a firearm at the unit.
However, police initially entered the unit without a search warrant, and didn't get a warrant until after kicking down a locked door.
The charges against Henning have already been dismissed once by Judge John Race because of statutory time limits, but he later reversed that decision (see sidebar).
On Aug. 8, a motion hearing was held in front of Race, but was continued until Sept. 6.
On Sept. 25, 2010, police were called to business units on Krueger Road after receiving a report of a strong stench and that there was something police needed to see.
"There was a complaint from other tenants — neighbors of the unit — of a foul odor that was getting worse by the day," Geneva Township police officer Robert Linder testified during the hearing.
During the hearing, Linder stated he was concerned that the vile scent could have been a dead body, which gave him reason to enter the unit.
"The individuals I met with had seen (Henning) on a daily basis in the morning, but had not seen him for about three weeks," Linder said.
However, another police officer had been to the units a few days prior to Linder being there and said the odor wasn't a dead body, Carol Unger-Keizer, Henning's attorney, said.
"He did not go in the building, he just smelled it and said it is not a dead body," Unger-Keizer said. "For what I can tell from police contacts and logs nobody made any attempt to get in touch with my client. They didn't have a real hard time finding him when they decided to look for him." At the time, Henning was incarcerated in Illinois.
Linder was the first on the scene that day, and when he arrived the garage door of the unit was already open, and he could smell the foul odor.
"It's not like anything I had ever smelled before," Linder said.
However, Unger-Keizer argued that neighbors had already been in the building. At that point, police should have obtained a search warrant, she said.
"They went there not on a community caretaker function at all, but specifically because they had been notified that there was something there that police need to be notified of," Unger-Keizer said.
When Linder entered the unit he testified that he found evidence of alleged drug activity, including plastic bins filled with a liquid substance that was bubbling.
Linder contacted his partner for backup and the Walworth County Drug Unit.
Linder said he contacted the drug unit because he didn't know whether the chemicals in the storage unit were toxic and harmful to inhale.
Assistant District Attorney Zeke Wiedenfeld said at that point it hadn't been determined whether there was a dead body in the unit, and Linder had to continue to look through the facility.
When the drug unit arrived, the property was searched and a locked office door was forced open.
Unger-Keizer argued that police should have made more efforts to locate Henning before entering through the locked door.
"They need to exhaust those options before breaking in and breaking down the door," she said.
After the search, law enforcement obtained a warrant from a judge, and one of the reasons given for the warrant was to look for Henning's dead body.
But it appears at that point police knew Henning was incarcerated.
Wiedenfeld questioned Linder on whether he thought there could be another body or someone else who needed aid in the office. Linder said that also was a concern.
"Someone can be essentially still alive and have that strong odor of a dead body," Linder said. "I have had individuals who are still alive, who needed aid, and had very foul odors."
After obtaining the warrant, law enforcement again searched the property and located a 9mm Luger under a mattress.
"The warrant is based on the warrantless search of the property," Unger-Keizer said.
Unger-Keizer is also arguing that the firearm was discovered with a search warrant that was obtained by providing a judge with information that police knew to be false.
But that's not the only reason she wants the gun removed from evidence.
"The gun was not placed on the return for the search warrant," Unger-Keizer said. "I think it needs to be secluded. It didn't appear on the warrant return in the evidence log."
Wiedenfeld said the warrant return could be amended to include the firearm. After a search, law enforcement has five days to file an evidence log.
However, it can be amended anytime after that.
"This case has been made up of nothing but corrections afterwards for the mistakes of the district attorney's office and the police department," Unger-Keizer said during the hearing.