People v. Lichtenheld

• Decision Date: 23 December 1976
• Docket Number: No. 75--270,75--270
• Citation: 44 Ill.App.3d 647,358 N.E.2d 694,3 Ill.Dec. 296
• Parties: , 3 Ill.Dec. 296 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Thomas G. LICHTENHELD, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 694

358 N.E.2d 694

44 Ill.App.3d 647, 3 Ill.Dec. 296

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Thomas G. LICHTENHELD, Defendant-Appellee.

No. 75--270.

Appellate Court of Illinois, Second District, First Division.

Dec. 23, 1976.

John Maville, State's Atty., Belvidere, Edward Morris, Ill. State's Attys. Assn., Elgin, for plaintiff-appellant.

Jerrold R. Beger, Schirmer, Schirger, Graff & Bege, Rockford, for defendant-appellee.

SEIDENFELD, Justice.

The State appeals from a judgment which suppressed evidence and dismissed the case after a preliminary hearing. It contends that the officer had probable cause to search and seize 1.99 grams of a substance containing cannabis which formed the basis of the charge against the defendant.

The judge ruled after hearing evidence from the police officer who was the State's sole witness and without hearing testimony proffered by the defendant. James Gearing, a state patrolman, testified that he was south bound on Route 76 in Boone County a 5:20 A.M. on March 8, 1975, when he observed a Volkswagen in the north bound lane of the highway with one headlight out. He turned around and stopped the car. Defendant, driver, stepped out of the car. The officer asked to see defendant's driver's license and vehicle registration card. The defendant immediately produced his driver's license but reentered his automobile to obtain the registration card from the glove compartment. The defendant leaned over the passenger side and reached up to open his glove compartment. The officer testified that fearing for his own safety he opened the door and leaned into the car, leaving one foot on the ground, and beamed his flashlight towards the glove compartment. While defendant was opening the glove compartment the officer stated that he smelled marijuana. He said he had made some 40 prior arrests for possession of marijuana, after traffic stops, almost all of which were based upon his sense of smell. After detecting the odor here he observed a red tobacco can in the glove compartment. On request defendant handed him the can. There was no material in it but a strong odor of marijuana emanated from it. He stated that he now believes that the source was a saturating smell which was evidently in the seats and upholstery of the vehicle. He then asked defendant to step out of the car. The officer walked around to the passenger side and opened that door, looked into the glove compartment and observed a pipe. He smelled it and detected a strong odor of marijuana and observed a sticky residue. The officer stated that he then observed a 35 millimeter film container in the glove compartment which he opened. He found this to be half filled with a green plant which on subsequent analysis was determined to be the marijuana. The witness further testified that he searched defendant's person but found no contraband.

The officer, having observed that defendant was driving a car with a defective headlight, a traffic law violation (Ill.Rev.Stat.1973, ch. 95 1/2, par. 12--201(a)), of course had probable cause to stop the defendant and to investigate his conduct within permissible limits. (See People v. Lee, 41 Ill.App.3d 502, 504, 354 N.E.2d 543 (1976).) And if the circumstances reasonably indicated that the officer was dealing with a criminal rather than an ordinary traffic offender a search would be justified in order to insure the officer's safety or to prevent the escape of the offender. (See People v. Palmer, 62 Ill.2d 261, 264, 342 N.E.2d 353 (1976).) It has been held that no unreasonable search occurs when an officer after having stopped a car for a traffic violation (one headlight) and having noticed that the license plates have been wired on, opens the car door to examine the vehicle identification number. (People v. Wolf, 60 Ill.2d 230, 232--34, 326 N.E.2d 766 (1975).) This court has also held that an officer, after having made a stop of the motorist for a traffic violation, may enter the vehicle in search of evidence if he smells marijuana while outside the vehicle. People v. Erb, 128...