People v. Flowers

• Decision Date: 30 December 1982
• Docket Number: No. 81-399,81-399
• Citation: 67 Ill.Dec. 203,111 Ill.App.3d 348,444 N.E.2d 242
• Parties: , 67 Ill.Dec. 203 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Theodore FLOWERS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 242

444 N.E.2d 242

111 Ill.App.3d 348, 67 Ill.Dec. 203

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Theodore FLOWERS, Defendant-Appellant.

No. 81-399.

Appellate Court of Illinois Second District.

Dec. 30, 1982.

B.J. Farrell, Wheaton, G. Joseph Weller, Elgin, Paul J. Glaser, Asst. State Appellate Defenders, for defendant-appellant.

J. Michael Fitzsimmons, State's Atty., Wheaton, Phyllis J. Perko, Elgin, Martin P. Moltz, State's Attys. Appellate Service Com'n, for plaintiff-appellee.

NASH, Justice:

After trial by jury defendant, Theodore Flowers, was convicted of burglary (Ill.Rev.Stat.1979, ch. 38, par. 19-1) and possession of burglary tools (Ill.Rev.Stat.1979, ch. 38, par. 19-2). He was sentenced to concurrent terms of imprisonment of seven years and one year, respectively, for these offenses.

Defendant appeals contending the trial court erred (1) in denying his motion to suppress evidence on the grounds defendant lacked "standing" to assert a Fourth Amendment interest in the vehicle searched; (2) that the evidence was insufficient to establish his guilt beyond a reasonable doubt; (3) that the court erred in denying his petition to be treated as an addict under the Dangerous Drug Abuse Act; and (4) that the court erred in refusing defendant's tendered circumstantial evidence instruction.

We consider first whether defendant, as driver of a car in which its owner was a passenger, had such an expectation of privacy in the car and its contents as to permit him to challenge the reasonableness of a search of the car.

Defendant filed a pretrial motion to suppress evidence seized after a warrantless search by police of a car in which he was riding, together with all other evidence resulting from the alleged illegal search and seizure. At the hearing of his motion defendant testified that at 11:50 p.m. on December 11, 1980, he was driving a Buick automobile owned by co-defendant, Julius Harshaw, in Oak Brook, Illinois. Harshaw was a passenger riding in the front seat. When defendant noticed the flashing lights of a police car behind him he pulled over to the curb and got out. One of the officers met defendant at the rear of the Buick where Harshaw joined them. When defendant could not produce a drivers license the officer asked for his name, address and birthdate. Harshaw was also unable to produce a drivers license but exhibited a traffic citation, apparently to show his license existed. Defendant told the officer the car belonged to Harshaw.

Defendant testified the officer returned to his squad car, without telling them why they had been stopped, and he and Harshaw returned to the Buick. Harshaw got in on the driver's side and defendant in the front passenger's seat.

The officer came back to the Buick and after speaking to Harshaw they went back to the squad car; Harshaw returned in a few minutes and again got in the driver's seat. The officer then opened the rear door, looked into the back seat of the Buick, and started to question them about items he saw there. The officer had no warrant nor did either defendant or Harshaw give him permission to go into the car.

The officer saw a brown shoulder bag on the back seat inside of which he found prescription forms. He then directed both men to get out of the car and continued his search locating hypodermic syringes and tools near the front passenger seat. The officer then told the men they were under arrest; he did not tell them why they had been originally stopped until later at the police station where defendant was given traffic citations for failure to have a drivers license and for defective brake lights.

After defendant's testimony the State moved for a directed finding denying the motion to suppress on the grounds defendant had failed to establish "standing" to assert a Fourth Amendment violation premised upon the search of Julius Harshaw's car. The trial court agreed and denied the motion to suppress evidence.

In considering a ruling on a motion to suppress evidence a reviewing court may also consider evidence adduced in trial following the suppression hearing. (People v. Braden (1966), 34 Ill.2d 516, 520, 216 N.E.2d 808, 810; People v. Sledge (1981), 92 Ill.App.3d 1051, 1055, 48 Ill.Dec. 381, 384, 416 N.E.2d 412, 415, leave to appeal denied.) We will do so to the extent necessary to resolve the issues presented.

Officers Alan Borkover and Sue Srch of the Oak Brook Police Department testified in trial they had observed the Buick automobile after it pulled out of the driveway of a business located at 600 Hunter Drive and noticed it did not have brake lights. After stopping the car Officer Borkover asked the driver, who he identified as defendant, for his license. When defendant could not produce a license the officer made a radio check and, on learning it had expired, arrested defendant for driving without a valid license.

Officer Borkover further testified that while standing beside the car he had observed a typewriter and a space heater in its back seat and he opened the door and searched the vehicle. On the passenger side of the floor of the front seat the officer found a pair of pliers, chisel and two rocks. He also found there an envelope containing cancelled and blank checks imprinted with the name of C. David Loftus of 615 West 22nd Street, Oak Brook, Illinois, a location adjacent to the place the Buick was first seen by the officers. The officer also searched the rear seat area of the car finding two bags containing cameras and photograph equipment, an IBM typewriter, space heater, tape recorder, clock radio and a calculator. A brown shoulder bag when opened was found to contain blank prescription pads and hypodermic syringes were also located in the car.

Officer Borkover thereupon contacted another officer by radio requesting he check the building located at the address on the checks. That investigation disclosed the building had been forcibly entered that night and most of the items found in the Buick had been stolen. A button was also located at the scene of the burglary. It was compared to the buttons on defendant's coat in a crime laboratory and a witness testified they were from the same die; a button was missing from defendant's coat.

After searching the car the officers removed the items located in it and took both men to the police station where citations for failure to have a drivers license (Ill.Rev.Stat.1979, ch. 95 1/2, par. 6-101) and defective brake lights (Ill.Rev.Stat.1979, ch. 95 1/2, par. 12-208) were issued to defendant. He was subsequently charged with burglary and the evidence seized from the car and the button were admitted in trial.

On appeal defendant contends that as the driver of the car and in control of it he had a possessory interest giving rise to a legitimate expectation of privacy protected by the Fourth Amendment. He further argues that the nonconsensual search of the vehicle without a warrant and without probable cause to believe he had committed or was committing a crime was unreasonable. The State responds that as the car was owned by the passenger, Julius Harshaw, the mere fact defendant was driving it was insufficient to invest him with an interest in the car protected by the Fourth Amendment. It also asserts that the officers were justified in stopped the car for the brake light violation and the ensuing circumstances supported defendant's arrest and the search of the vehicle.

In Rakas v. Illinois (1978), 439 U.S. 128, 139, 99 S.Ct. 421, 428, 58 L.Ed.2d 387, 398, the court concluded the issue of standing involved "two inquiries: first, whether the proponent of a particular legal right has alleged injury in fact and, second, whether the proponent is asserting his own legal rights and interests rather than basing his claim for relief upon the rights of third parties." The court there rejected the claim that passengers in a car, who asserted no property or possessory interest in either the car or property seized in it, had a protected privacy interest which would be violated by an unreasonable search. Under Rakas, a defendant must show that he had a "legitimate expectation of privacy in the invaded place" (99 S.Ct. at 430) and cannot rely upon the former "automatic standing" rule of Jones v. United States (1960) 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, simply because he was in a place he had a right to be at the time of the search. See, United States v. Salvucci (1980), 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619.

The circumstances in which an automobile was stopped and searched by officers when its owner was a passenger and defendant was driver have been considered by reviewing courts. In State v. Emery (1979), 41 Or.App. 35, 597 P.2d 375, the court concluded that defendant's temporary control of the car as driver did not give him a sufficiently greater expectation of privacy in its contents to enable him to object to a search of the passenger compartment and trunk. In United States v. Lochan (1st Cir.1982), 674 F.2d 960, the court considered as factors relevant to a privacy expectation whether defendant was legitimately present in the area searched; his possession or ownership of the area or the property seized; prior use of the area searched or the property seized; the ability to control or exclude others use of the property; and, a subjective expectation of privacy therein. (674 F.2d 960, 965.) The Lochan court concluded that defendant's expectation of privacy based upon the facts he was driving the car when stopped, that he had the car's registration in his pocket and had apparently been on a trip of several hundred miles was insufficient in view of the presence of the owner and lack of other evidence of a privacy expectation.

In the present case defendant concedes he had no technical property rights in the car, but argues that as driver he controlled and directed it giving him a sufficient possessory interest to give rise to a privacy expectation in its...