People v. Hamilton

• Decision Date: 26 October 1993
• Docket Number: No. 5-92-0684,5-92-0684
• Citation: 622 N.E.2d 130,251 Ill.App.3d 655
• Parties: , 190 Ill.Dec. 720 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. David HAMILTON, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 130

622 N.E.2d 130

251 Ill.App.3d 655, 190 Ill.Dec. 720

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. David HAMILTON, Defendant-Appellee.

No. 5-92-0684.

Appellate Court of Illinois,

Fifth District.

Oct. 26, 1993.

Robert Haida, State's Atty., Belleville, Nobert J. Goetten, Director, Stephen E. Norris, Deputy Director, Mary H. Doyle, Staff Atty., Office of the State's Attys. Appellate Prosecutor, Mt. Vernon, for plaintiff-appellant.

Daniel M. Kirwan, Deputy Defender, Janet Gandy Fowler, Asst. Defender, Office of the State Appellate Defender, Mt. Vernon, for defendant-appellee.

Justice WILLIAM A. LEWIS delivered the opinion of the court:

The State appeals the circuit court's order granting defendant's, David Hamilton's, motion to quash arrest and suppress evidence. We affirm for the reasons set forth below.

At the hearing on defendant's motion to suppress evidence, defendant testified that on April 2, 1992, he was a passenger in his own car, which was being driven by Neon Bryant. On that date, a police officer stopped the car and informed defendant and Bryant that a car matching the description of their car had been reported stolen. The officer asked defendant and Bryant for identification, and defendant said he gave the officer identification for himself and for his car. The officer ran a check on his identification, and the check came back clear.

The officer had defendant and Bryant get out of the car and did a pat-down search of them. They had been outside the car for 10 to 15 minutes when the check on Bryant revealed that there was an outstanding warrant on Bryant. Defendant stated: "[The officer then] looked in [the car] and he seen a jar full of gold cleaner for my gold tooth." The officer asked defendant what it was, and defendant told him it was gold cleaner for his tooth. The police officer called other officers to come to the scene.

Defendant was placed in a squad car while another officer tested the contents of the jar. Defendant stated that neither he nor Bryant gave anyone permission to search the car. Subsequently, an officer arrived with a dog, and the officer with the dog searched the car. The search revealed a gun under the hood of defendant's car, and defendant was placed under arrest at that time.

On cross-examination, defendant admitted that his front windshield on his car was cracked. He further admitted that the plates on the car belonged to a Renault (the car involved here was a 1982 Chevrolet Caprice Classic), but he stated that he was in the process of having the plates transferred. Defendant testified that Bryant was placed under arrest at the time the check revealed that he had an outstanding warrant.

Defendant stated that the gold cleaner was in a pill bottle with a label on it that stated "gold cleaner." Defendant described the gold cleaner as a white powder.

Illinois State Trooper Chris Tracy testified that he had been a trooper for three years, and that he was on duty on April 2, 1992. At about 6:30 that evening, he heard an ISPERN broadcast that there was a blue Chevy, early 1980's, stolen during an armed robbery. Trooper Tracy saw defendant's blue Chevy proceeding westerly on Highway 40, thought the car matched the description on the broadcast, and turned around and followed defendant's car. Trooper Tracy ran a check on the license plates of defendant's car even though the plates were a different number than those reported in the ISPERN broadcast. The check of the license plates came back as being registered to a Renault, leading Trooper Tracy to believe that the plates had been switched. Trooper Tracy also noted that defendant's car had a shattered windshield.

Trooper Tracy notified police headquarters that he was going to stop defendant's car, which he did. After defendant's car was stopped, Trooper Tracy asked defendant and Bryant over his public address speaker to raise their hands where he could see them. Trooper Tracy stated he was treating the persons in the car as though they were armed. Tracy then came to the passenger side of defendant's car and had defendant get out of the car. Tracy conducted a pat-down search of defendant and asked defendant to step in front of the car.

Tracy then had Bryant slide over to the passenger side of the car and get out. Tracy also conducted a pat-down search of Bryant. During the pat-down search of Bryant, Tracy explained to defendant and Bryant that he had stopped them because of the possibility of the car being stolen. Defendant told Tracy that the car belonged to him. Tracy's pat-down search of the two men did not disclose any weapons.

After both defendant and Bryant got out of the car, Tracy noticed a prescription bottle laying on the front passenger seat. Tracy picked up the bottle. Tracy could see through the bottle, and he saw that the contents were a white powder. Tracy stated that the label on the container said "gold tooth polish." Tracy asked defendant about the container, and defendant told Tracy that the bottle contained what the label said, gold tooth powder.

When Tracy asked defendant and Bryant for identification, neither had their ID's with them but both told Tracy their names and dates of birth. Tracy went to the squad car and gave the names to the dispatcher to run a check on them. Defendant's check came back clear, i.e., he had a valid driver's license and had no outstanding warrants for his arrest. Bryant's check came back as no record on file, which indicated that Bryant did not have a driver's license. This fact led Tracy to believe that Bryant was lying as to who he was, and Tracy confronted Bryant about this. Bryant then told Tracy his true name, and when Bryant's name was checked the second time, it was revealed that there was an outstanding warrant for Bryant's arrest out of Sangamon County for the offense of criminal sexual assault. The record does not reflect whether Bryant had a valid driver's license; however, Bryant was not issued a ticket for not having a driver's license. Tracy placed Bryant under arrest at about 6:45 p.m., because of the warrant. Tracy again searched Bryant after the arrest and found two rock-like substances on Bryant's person. When asked what the substances were, Bryant told Tracy that the rocks were also soap for gold teeth. Tracy found the explanation to be suspicious.

After arresting Bryant, Tracy called police headquarters and told them he had Bryant in custody. Tracy also asked that a canine unit and someone with a field test kit come to his location. Tracy stated that he placed this call at about 7:05 p.m. Tracy explained that he wanted the white powder in the prescription bottle tested to see if it was cocaine, and that he wanted the dog unit to see if there were other drugs in the car.

Trooper Kimble was the first officer to arrive in response to Tracy's call for assistance. Tracy had Kimble place defendant, who was handcuffed, in the back of Kimble's squad car. Next, Sergeant Runyon and Master Sergeant Bramlett arrived at about 7:15 or 7:20 that evening. Runyon did a field test of the white powder and the rock-like substances, and the test came back negative for cocaine. Bramlett advised Tracy to wait for the canine unit before he did anything else.

Tracy testified that Trooper Parker arrived with a dog at about 7:40 p.m. At that time, the dog was placed inside the car, and although it exhibited great interest, the dog did not "alert" on anything. The dog was then walked around the exterior of the car, where it alerted on the right front grill area of the car. The hood of the car was opened, and a loaded revolver was discovered behind the car's battery. Tracy ran a criminal check on defendant and found that he was a convicted felon. At about 8 p.m., Tracy placed defendant under arrest for unlawful use of a weapon by a felon.

When questioned by the court, Tracy admitted that he had no search warrant for the car, that he had no arrest warrant for defendant, and that he was not impounding the car. Further, defendant was not under arrest for a stolen vehicle, and defendant was not under arrest for his "gold tooth powder." Tracy also told the court that defendant's car was properly registered and that he did not issue a traffic citation to defendant. Tracy stated that the reason he held defendant after the field test came back negative was because Bramlett thought that the white powder might be a cutting agent and that there might be cocaine hidden in the car. All of the officers present disbelieved the "gold tooth story." They also thought the rock-like substances were going to be sold as a look-like for crack cocaine.

Sergeant John Runyon of the Illinois State Police confirmed Tracy's testimony that he came to the scene of defendant's car in response to Tracy's call on April 2, 1992, that he ran a field test on a white powder substance for the presence of cocaine, and that the test resulted in a negative finding.

Trooper Lynn Parker testified that he brought his dog to the scene of defendant's car on April 2, 1992, at Tracy's request. Parker initially had the dog search the passenger compartment, but the dog did not alert. Parker explained that when the dog alerts, his breathing pattern changes and he breathes more rapidly, the dog becomes "perpendicular," and the dog either bites or scratches the area to indicate the presence of an illicit substance. His dog was trained to detect the odor of cannabis, heroin, methamphetamine, cocaine, and nitrates, including gun powder.

After searching the interior of the car, Parker asked Tracy what would happen now. Tracy told him that if nothing was found, he would have to release the car to defendant. Parker then walked the dog around the outside of the car, and the dog alerted on the right side of the front grill. The hood of the car was opened and the gun was found. Parker conducted his search of the car at about 7:45 that night.

In arguing his motion, defendant conceded that the...