People v. Brownlee
| Decision Date | 08 December 1997 |
| Docket Number | No. 4-96-0444,4-96-0444 |
| Parties | , 227 Ill.Dec. 692 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Ladresha F. BROWNLEE, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
John C. Piland, Champaign County State's Attorney, Urbana, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, Leslie Hairston, Thomas R. Dodegge, Staff Attys., State's Attorneys Appellate Prosecutor, Springfield, for the People.
Robert G. Kirchner, Lerner & Kirchner, Champaign, for Ladresha F. Brownlee.
In November 1995, the State charged defendant, Ladresha F. Brownlee, with possession with intent to deliver a controlled substance (1 gram or more but less than 15 grams of a substance containing cocaine) in violation of section 401(c)(2) of the Illinois Controlled Substances Act (720 ILCS 570/401(c)(2) (West 1994)). In December 1995, defendant filed a motion to suppress the evidence that was the basis for the charge against her. In January 1996, the trial court conducted a hearing on that motion and granted it.
The State appealed the suppression order, and this court reversed and remanded with directions. People v. Brownlee, 285 Ill.App.3d 432, 220 Ill.Dec. 960, 674 N.E.2d 503 (1996) (Brownlee ). Defendant filed a petition for leave to appeal, which the supreme court denied. However, in the exercise of that court's supervisory authority, it vacated this court's judgment and remanded with directions that we "consider the defendant's argument regarding the Illinois Constitution." People v. Brownlee, 172 Ill.2d 555, 223 Ill.Dec. 40, 40-41, 678 N.E.2d 1048, 1048-49 (1997).
In accordance with the supreme court's directions, we have considered anew defendant's argument regarding the Illinois Constitution. For the reasons that follow, we adhere to our earlier decision, reversing the trial court and remanding with directions.
The facts pertinent to this appeal are set forth in Brownlee, 285 Ill.App.3d at 433-34, 220 Ill.Dec. at 961-62, 674 N.E.2d at 504-05 and require only brief restatement here. Essentially, they show that on the night in question, two Urbana police officers stopped a car containing four occupants for a minor traffic violation. The officers noted that the car had been driven in a suspicious fashion in an area the officers knew had drug activity.
After the officers spoke to the car's occupants, determined that none had any outstanding arrest warrants, and decided not to issue any traffic tickets, one of the officers "paused a couple of minutes, and [he] asked [the driver] if [he] could search his vehicle." The officer had not told the driver that he could leave. After further discussion, the driver consented to the search. During this search, the officers found some marijuana and arrested all of the car's occupants. After the officers arrested defendant (who was a backseat passenger), they searched her purse and found the substance containing cocaine, which was the basis of the charge the State filed against her.
Defendant filed a motion to suppress and argued that the trial court should follow a decision from the Ohio Supreme Court that the State on appeal appropriately terms the "first-tell-then-ask" rule. This rule states that when the police stop a car and later determine that they are not going to issue any traffic tickets to the driver (or, alternatively, have completed the process of issuing those tickets), they may not ask for the driver's consent to search the car until they have first told the detained driver that he is free to drive away. The trial court granted defendant's motion to suppress, and this appeal followed.
In Brownlee, we analyzed defendant's motion to suppress in the context of the fourth amendment to the federal constitution (U.S. Const., amend.IV). Defendant had argued to this court that the fourth amendment required that motorists who are stopped for traffic offenses be clearly informed by the detaining officer when they are free to go before the officer attempts to engage in any further questioning or to seek consent to search the car. Defendant argued that the officer must first say to the driver, "At this time you are legally free to go," or words to that effect.
In support of her argument, defendant cited the decision of the Ohio Supreme Court in State v. Robinette, 73 Ohio St.3d 650, 653 N.E.2d 695 (1995). However, in Brownlee, this court noted that during the appeal from the suppression order in this case, the United States Supreme Court rendered its decision in Ohio v. Robinette, 519 U.S. 33, ---- - ----, 117 S.Ct. 417, 420-21, 136 L.Ed.2d 347, 353-55 (1996), and reversed
Brownlee, 285 Ill.App.3d at 438, 220 Ill.Dec. at 964, 674 N.E.2d at 507.
We reaffirm our holding in Brownlee that the fourth amendment to the federal constitution does not require a police officer to tell a stopped motorist that he is free to go before the officer may ask the motorist for consent to search his vehicle.
We now address whether the prohibition against unreasonable searches and seizures contained within the Illinois Constitution requires the "first-tell-then-ask" rule (Ill. Const.1970, art. 1, § 6). For the following reasons, we hold that it does not.
Our analysis of whether the Illinois Constitution provides greater protections than the fourth amendment to the federal constitution begins with a comparison of the language in each. The fourth amendment, in pertinent part, reads as follows: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const., amend. IV. The analogous provision of the Illinois Constitution reads, in pertinent part, as follows: "The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means." Ill. Const.1970, art. I, § 6.
In People v. Krueger, 175 Ill.2d 60, 65, 221 Ill.Dec. 409, 412, 675 N.E.2d 604, 607 (1996), the supreme court analyzed these provisions and wrote the following: "The language of the two constitutional provisions concerning unreasonable searches and seizures is nearly identical." This similarity in language no doubt accounts in large measure for the inclination of the Supreme Court of Illinois in construing provisions of our state constitution to follow decisions of the United States Supreme Court construing similar provisions of the federal constitution. See People v. Tisler, 103 Ill.2d 226, 242, 82 Ill.Dec. 613, 622, 469 N.E.2d 147, 156 (1984).
In Tisler, the supreme court rejected the defendant's argument that the Supreme Court of Illinois should not follow the lead of the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), which held that a judge should look at the totality of the circumstances when assessing an affidavit that relies on an informant's account. The defendant argued that the Supreme Court of Illinois should instead adhere to the earlier, two-pronged test of Aguilar v. Texas, 378 U.S. 108, 114-15, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729 (1964), which the United States Supreme Court abandoned in Gates. In support of this argument, the defendant asserted that the drafters of article I, section 6, of the 1970 Illinois Constitution intended to expand the right of Illinois citizens to be free from unreasonable police conduct and thereby to provide greater protections for our citizens from government intrusion than that provided by the federal constitution. Tisler, 103 Ill.2d at 241, 82 Ill.Dec. at 621, 469 N.E.2d at 155.
After carefully considering the respective language of both constitutional provisions and the proceedings of the Sixth Illinois Constitutional Convention (from which the 1970 Illinois Constitution came), the supreme court rejected the defendant's argument, noting:
Tisler, 103 Ill.2d at 242, 82 Ill.Dec. at 621-22, 469 N.E.2d at 155-56.
The supreme court in Tisler also wrote the following (which is particularly pertinent for the issue before us):
Tisler, 103 Ill.2d at 245, 82 Ill.Dec. at 623, 469 N.E.2d at 157.
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