425 N.E.2d 1383 (Ill.App. 3 Dist. 1981), 81-99, People v. Lafayette

Docket Nº:81-99.
Citation:425 N.E.2d 1383, 99 Ill.App.3d 830, 55 Ill.Dec. 210
Party Name:PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Ralph LAFAYETTE, Defendant-Appellee.
Case Date:September 10, 1981
Court:Court of Appeals of Illinois

Page 1383

425 N.E.2d 1383 (Ill.App. 3 Dist. 1981)

99 Ill.App.3d 830, 55 Ill.Dec. 210

PEOPLE of the State of Illinois, Plaintiff-Appellant,

v.

Ralph LAFAYETTE, Defendant-Appellee.

No. 81-99.

Court of Appeals of Illinois, Third District.

September 10, 1981.

Page 1384

[99 Ill.App.3d 831] [55 Ill.Dec. 211] Rita F. Kennedy, John X. Breslin, State's Attys. Appellate Service Commission, Ottawa, L. Patrick Power, State's Atty., Kankakee, for plaintiff-appellant.

Peter A. Carusona, Asst. State Appellate Defender, Robert J. Agostinelli, State Appellate Defender, Ottawa, for defendant-appellee.

HEIPLE, Justice.

The State appeals from the order of the Circuit Court of Kankakee County which suppressed evidence seized. The issue presented is whether a warrantless search of the defendant's (Ralph Lafayette) shoulder bag, made during booking procedures following a valid custodial arrest, was unreasonable and, thus violated the defendant's fourth and fourteenth amendment rights.

[99 Ill.App.3d 832] The defendant had been charged with possession of a controlled substance in violation of section 1402(b) of the Controlled Substances Act. (Ill.Rev.Stat.1979, ch. 561/2, par. 1402(b).) Prior to trial, he moved to suppress ten amphetamine pills found in his purse-like shoulder bag subsequent to his arrest for disturbing the peace. The testimony adduced at the suppression hearing established the following facts:

On September 1, 1980, at approximately 10 p. m., Officer Maurice Mietzner responded to a call about a disturbance at the Town Cinema in Kankakee. When Mietzner arrived, the defendant was arguing with the theater manager. The manager said he wanted to sign a complaint against the defendant for disturbing the peace. According to Mietzner, the defendant continued to yell and scream in the theater, so the officer arrested him for disturbance of the peace. Although the defendant wore a shoulder bag, Mietzner did not remove it. Nor did he "pat down" the defendant for weapons or contraband. Instead, Mietzner handcuffed the defendant and transported him by car to the police station.

In the booking room, the handcuffs were released, and the defendant was ordered to remove any items from his pockets and place them on the counter. The defendant did as ordered. According to Mietzner's testimony, the defendant then reached into his shoulder bag, withdrew a package of cigarettes, and placed the bag on the counter where it was searched. The defendant testified that the police removed the bag from his shoulder and searched it. After "patting down" the bag, Mietzner looked inside a cigarette case package and found ten pills later identified as containing amphetamines. Mietzner stated he was not in fear for his safety when he made the arrest, nor did he expect to find a gun or drugs upon searching the shoulder bag. He searched the bag because "everything" had to be inventoried, according to standard police procedure. Mietzner also admitted the defendant's shoulder bag was small enough to be placed and sealed in a larger bag or box for protective purposes.

At the close of the hearing, the prosecution argued the seizure was made incident to a valid inventory search. After taking the matter under advisement, the circuit court summarily suppressed the evidence seized. On appeal, the State advances two grounds for justifying the warrantless search of the shoulder bag at the stationhouse

Page 1385

[55 Ill.Dec. 212] following the defendant's arrest: the search was incident to a lawful custodial arrest, and the search constituted a valid inventorying of the defendant's personal effects upon his arrest. Neither party disputes the lawfulness of the defendant's custodial arrest for disturbance of the peace.

With respect to the State's first argument, that the warrantless search was reasonable because it was incident to a valid custodial arrest, we find the State has waived this argument for the purposes of appeal by failing to raise it at the suppression hearing. (See, People v. Fuentes (3rd Dist., 1980), 91 Ill.App.3d[99 Ill.App.3d 833] 71, 46 Ill.Dec. 823, 414 N.E.2d 876.) Moreover, even assuming, arguendo, that the State has not waived this argument, the stationhouse search of the shoulder bag did not constitute a valid search incident to a lawful arrest.

A search incident to arrest, if lawful at the time of the arrest, may be conducted later when the accused arrives at the place of detention. (...

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