People v. Gross

• Decision Date: 14 June 1984
• Docket Number: No. 3-83-0669,3-83-0669
• Citation: 465 N.E.2d 119,80 Ill. Dec. 328,124 Ill.App.3d 1036
• Parties: , 80 Ill.Dec. 328 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Kathleen A. GROSS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 119

465 N.E.2d 119

124 Ill.App.3d 1036, 80 Ill.Dec. 328

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Kathleen A. GROSS, Defendant-Appellee.

No. 3-83-0669.

Appellate Court of Illinois Third District.

June 14, 1984.

John M. Wood, John X. Breslin, State's Attys. Appellate Service Com'n, Ottawa, Edward F. Petka, Joliet, for plaintiff-appellant.

Thomas A. Lilien, Asst. State Appellate Defender, Robert J. Agostinelli, Deputy State Appellate Defender, Ottawa, for defendant-appellee.

HEIPLE, Justice:

The defendant was charged with possession of cocaine and filed a pre-trial motion to suppress the evidence seized. The trial court granted the motion and the State appeals.

On July 23, 1982, the police obtained a warrant to search the premises and person of Tom Sawyer for contraband. The warrant was executed later that evening. The defendant was present at Sawyer's apartment along with four other individuals. The non-residents were detained and frisked before being permitted to leave. The police searched the defendant's purse which was lying near her on a table and found some green leafy plant material and a substance later identified as cocaine. The trial court granted the defendant's motion to suppress because there had been no articulation of an individualized suspicion against the defendant that she was either armed or concealing contraband. We affirm.

The trial court's decision on a motion to suppress will not be overturned unless it is manifestly erroneous. (People v. Fuentes (1980), 91 Ill.App.3d 71, 46 Ill.Dec. 823, 414 N.E.2d 876.) The search of the defendant's purse was warrantless. Therefore, the burden was on the State to establish an exception to the warrant requirement. People v. Rinaldo (1980), 80 Ill.App.3d 433, 35 Ill.Dec. 738, 399 N.E.2d 1027.

The State argues that there are two exceptions to the warrant requirement which justify the search of the defendant's purse: (1) the search was permissible under section 108-9 of the Criminal Code of 1963 (Ill.Rev.Stat.1981, ch. 38, par. 108-9) and, (2) the search was permissible as a weapons frisk. The State also contends that the defendant's purse was within the scope of the search warrant.

Section 108-9 reads as follows:

"In the execution of the warrant the person executing the same may reasonably detain to search any person in the place at the time:

(a) To protect himself from attack, or

(b) To prevent the disposal or concealment of any instruments, articles or things particularly described in the warrant."

The defendant contends that the scope of this provision must be read narrowly in light of Ybarra v. Illinois (1979), 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238.

In Ybarra, the police had obtained a search warrant for a tavern and its bartender. While executing the warrant, police officers frisked each of the customers present at the tavern. A cigarette pack containing other objects was seized from Ybarra and was later found to contain contraband. The Illinois trial and appellate courts upheld the search under section 108-9.

The United States Supreme Court held that the search of Ybarra contravened the Fourth and Fourteenth Amendments. The search warrant did not authorize the search of anyone other than the bartender, nor was there any indication that the police had probable cause to believe anyone else at the tavern would be violating the law. The warrant did not refer to the patrons or indicate that any patrons were engaged in drug trafficking. The police had no probable cause to search Ybarra at the time the warrant was executed, since he was simply present at the bar and did not make gestures indicative of criminal conduct or concealment of contraband. The police had probable cause to search the tavern, but Ybarra's propinquity to someone else independently suspected of criminal activity did not amount to probable cause to search him. (444 U.S. at 91, 100 S.Ct. at 342.) Each patron of the tavern was protected by the Fourth Amendment. Absent probable cause particularized with respect to a patron, no patron should have been searched. Open-ended or general warrants which do not specify the places or persons subject to the search are unconstitutional, and the search of Ybarra was equivalent to a search pursuant to a general warrant.

The State of Illinois contended in Ybarra that, due to the need to control drug trafficking and the ease with which evidence of narcotics possession can be passed between persons, the Fourth Amendment should be construed to permit searches of persons present on "compact" premises where a warrant is being executed, where the police have a "reasonable belief" that the persons are connected with drug trafficking and may be concealing contraband. (444 U.S. at 94, 100 S.Ct. at 343.) The Supreme Court rejected the State's position in light of United States v. DiRe, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). The constitutional standard of probable cause was held to be applicable.

The State contends that since the search in Ybarra was carried out in a tavern, the probable cause requirement should be limited only to searches carried out in public places rather than a private residence as in the case at bar. The State's rationale for this distinction is that owing to the increased danger to police safety involved in a search of a private residence and the increased likelihood and opportunity for occupants to conceal or carry away contraband, a reasonable suspicion should suffice to permit officers to search persons who are connected to the premises. This was the rationale of pre-Ybarra cases which the State maintains are still good law. (People v. Dukes (1977), 48 Ill.App.3d 237, 6 Ill.Dec. 533, 363 N.E.2d 62; People v. Campbell (1979), 67 Ill.App.3d 748, 24 Ill.Dec. 404, 385 N.E.2d 171.) The State also cites 2 W. LaFave, Search & Seizure, sec. 4.9 (1984 pocket at 41).

The public versus private premises issue is one of first impression in Illinois. Other jurisdictions which have dealt with the question have refused to recognize any such distinction. Lippert v. State, 664 S.W.2d 712 (Tex.Cr.App.1984); State v. Weber, 64 Or.App. 459, 668 P.2d 475 (1983).

The thrust of the Supreme Court holding in Ybarra is that the Fourth and Fourteenth Amendments protect the legitimate expectations of privacy of persons, not places. Therefore, a person's mere presence during the execution of a search warrant naming others does not, without more, give rise to probable cause to search that person. Ybarra does not condition a person's expectation of privacy on the type of premises being searched and we will not alter that protection. Therefore, we hold that the requirement of probable cause set forth in Ybarra applies to the present case.

We have examined the record...