People v. Braasch, 83-0001

• Decision Date: 19 March 1984
• Docket Number: No. 83-0001,83-0001
• Parties: , 78 Ill.Dec. 67 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Fred D. BRAASCH, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 651

461 N.E.2d 651 122 Ill.App.3d 747, 78 Ill.Dec. 67 PEOPLE of the State of Illinois, Plaintiff-Appellant,
v.
Fred D. BRAASCH, Defendant-Appellee. No. 83-0001. Appellate Court of Illinois,
Second District. March 19, 1984.

[122 Ill.App.3d 748]

Page 653

[78 Ill.Dec. 69] J. Michael Fitzsimmons, State's Atty., Barbara A. Preiner, Asst. State's Atty., Wheaton, for plaintiff-appellant.

John F. Donahue, Oak Brook, for defendant-appellee.

REINHARD, Justice:

The State brings this interlocutory appeal (87 Ill.2d R. 604(a)(1)) from an order of the trial court which granted the motion of the defendant, Fred Braasch, to suppress cannabis which an Illinois State police trooper discovered pursuant to an inventory search inside a paper bag in the trunk of the automobile which defendant was driving.

On appeal, the State contends that the trial court erred when it granted the defendant's motion to suppress, because (1) cannabis was discovered pursuant to a valid inventory search of the vehicle; (2) the cannabis was admissible under the theory of evidence discovered incident to a lawful custodial arrest; and (3) the defendant did not have standing in the first place to seek suppression of the cannabis.

The defendant was charged with the unlawful possession of more than 30 grams but less than 500 grams of a substance containing cannabis. (Ill.Rev.Stat.1981, ch. 56 1/2, par. 704(d).) Defendant filed a motion to suppress the evidence, a quantity of cannabis, which a State trooper seized from the automobile defendant was driving. The motion alleged that the warrantless search of the vehicle and seizure of the cannabis following his being stopped for a traffic violation constituted a violation of the defendant's rights under the fourth amendment to the United States Constitution (U.S. Const., amend. IV) and article 1, section 6 of the Illinois Constitution (Ill. Const.1970, art. 1, § 6).

At the suppression hearing the defendant testified that he was driving his mother's vehicle on Interstate Highway 55 (I-55) near Cass Avenue at approximately 1:40 a.m. on January 26, 1982. At that time [122 Ill.App.3d 749] a State trooper stopped the defendant for failure to use a turn signal when changing lanes. According to the defendant, he had a beer bottle on the floor of the vehicle, and the trooper noticed it. The trooper asked the defendant whether he possessed a driver's license, and the defendant responded in the negative. The trooper advised the defendant that he was being placed under arrest for driving under the influence of alcohol.

After the trooper handcuffed the defendant and placed him in the front seat of the squad car, he called in and determined the car was not stolen. Then he returned to the vehicle the defendant was driving, checked the inside of the car, removed the keys from the ignition, and opened the trunk of the automobile. The trooper searched the trunk and found a brown paper bag which contained marijuana. Defendant testified the top of the bag was "closed up," or "wrapped down, not folded." The defendant related further that the trooper did not display a search warrant for the car, did not have permission to remove the keys from the ignition, and did not inform the defendant that he was acting pursuant to an outstanding arrest warrant for an unrelated offense. Defendant stated he had placed a small quantity of marijuana in a bag into a tool box on the back floor which was still there when he recovered the car.

Ed Donath, an Illinois State police trooper, recounted that he was on patrol on I-55 on the morning in question when he observed a vehicle driving in an erratic manner, weaving from lane to lane. After following that automobile for about one mile, Donath stopped the defendant who was alone in the car. Trooper Donath asked the defendant to explain why he was driving in such an erratic manner. At this time the officer noticed the odor of alcohol and realized that the defendant was not aware that he had been driving erratically. When Donath asked to see the defendant's driver's license, the defendant responded that he did not have one because it had been revoked. Trooper Donath also observed that the defendant's speech appeared sluggish and somewhat slurred. In Donath's

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[78 Ill.Dec. 70] opinion, the defendant was not physically able to drive. Then the witness arrested the defendant for driving under the influence of intoxicating liquor.

After arresting the defendant, the trooper placed the accused in the squad car and asked the defendant whether he would be able to have the car removed or be able to make bond, because he was going to transport the defendant to jail. The defendant replied that the car belonged to his mother, that he was unable to post bond, and that he had nobody to call to get him. According to Trooper Donath, the vehicle in question was located on the shoulder of I-55, and it would have [122 Ill.App.3d 750] been illegal for the car to remain parked there because parking is only allowed on a controlled-access highway, such as I-55, under emergency conditions. Donath related further that it is the policy of the Illinois State police to arrange to have all vehicles towed if a subject is arrested and to conduct an inventory search of all vehicles that are towed. Accordingly, the officer conducted an inventory search of the vehicle to ascertain what personal items were in the car.

Trooper Donath testified that he first examined the...