People v. Sanders

• Decision Date: 16 December 1976
• Docket Number: No. 75--328,75--328
• Citation: 44 Ill.App.3d 510,358 N.E.2d 375,3 Ill.Dec. 208
• Parties: , 3 Ill.Dec. 208 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Andrew SANDERS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 375

358 N.E.2d 375

44 Ill.App.3d 510, 3 Ill.Dec. 208

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Andrew SANDERS, Defendant-Appellee.

No. 75--328.

Appellate Court of Illinois, Fifth District.

Dec. 16, 1976.

Herbert J. Lantz, Jr., State's Atty., Chester, for plaintiff-appellant; Bruce D. Irish, Principal Atty., Raymond F. Buckley, Jr., Staff Atty., Ill. State's Attys. Assn., Statewide Appellate Assistance Service, Mt. Vernon, of counsel.

Michael J. Rosborough, Deputy State Appellate Defender, A. Michael Kopec, Asst. State Appellate Defender, Fifth Judicial District, Mount Vernon, for defendant-appellee.

KARNS, Presiding Justice.

This is an appeal by the State from an order of the Circuit Court of Randolph County granting the motion of defendant-appellee Andrew G. Sanders to suppress evidence seized from the trunk of his car pursuant to a warrantless search.

The defendant was indicted for possession of more than 30 grams but less than 500 grams of cannabis, in violation of Section 4(d) of the Cannabis Control Act (Ill.Rev.Stat.1973, ch. 56 1/2 par. 704(d)). A preliminary hearing was held at which only one witness, the arresting officer, testified. At the conclusion of the testimony, an oral motion by the defense to suppress the evidence was denied, on the ground that the defendant had consented to the search. The trial court did, however, grant defense counsel's request to reconsider the issue upon submission of briefs. No additional evidentiary hearing was held on the motion to suppress; the parties agreed that the evidence adduced at the preliminary hearing could be considered along with the briefs in determining the motion. After consideration of the motion and the briefs, the court entered an order granting the motion on the grounds that the defendant had a right to revoke his consent to the search, and any search after revocation of consent was illegal and in derogation of the defendant's rights under the state and federal constitutions. This appeal pursuant to Supreme Court Rule 604 (Ill.Rev.Stat.1973, ch. 110A, par. 604) followed.

The relevant facts, as adduced at the preliminary hearing, are not in dispute. Michael Thomas Korando, Jr., a patrolman in the Chester police department, testified that in the early morning hours of June 29, 1974, he was on patrol in a marked squad car with two other police officers. About 1:30 a.m., Patrolman Korando observed the defendant in a telephone both on State Street in Chester. When the defendant finished his conversation, he returned to his automobile and drove to Reaban's parking lot, some three and a half blocks away. Just as the defendant was leaving the phone booth, according to Korando's testimony, 'we received a call from our dispatcher that there had been someone made a report by phone to her that Andrew Sanders was carrying three lids of grass and some beer in the trunk of his car.' Therefore the police officers followed him to the parking lot, at which time, according to Korando, the following sequence of events occurred:

'I walked over to the car and I said, Andy did you call the police station just then. I saw you were on the phone there. And he says, no, I didn't call the police station. I was talking to a girl. If you want to check, call and ask him (sic) and at that time I said I believed him and asked if we would (sic) look into his trunk.

Q. What did the defendant to or say at that time?

A. At that time the defendant took the keys from the ignition of his car and walked to the rear and opened his trunk.'

'Q. Did he say anything to you prior to opening the trunk?

A. No, sir.

Q. After he opened the trunk what did you do, if anything?

A. He opened the trunk and opened the beer cooler and I looked in the beer cooler and I started moving towards the right and I picked up the top of the air cleaner that was laying there and I started moving over to the right side further yet, and I went to reach for a paper sack that was sat on top of the styrofoam cooler--

Q. Officer, let me interrupt you for a minute. What did that paper sack look like, if you recall?

A. Brown paper bag like you get in stores.

Q. And go ahead, and you started, you reached for the paper sack.

A. Whenever I reached for the sack, the defendant stated I couldn't look at everything. He grabbed it from me and said I couldn't look in there.

Q. And what did you do, if anything?

A. I grabbed the sack back from the defendant and whenever I grabbed at the sack it tore and I saw there were smaller plastic bags inside the brown sack and they contained green substance and so I opened them up after I got away and found green substances in small bags that appeared to be marijuana, cannabis.'

'Q. Officer, after you grabbed the bag back from the defendant, what did the defendant say, if anything, if you recall?

A. Nothing at this time.

Q. What did you do at that time?

A. At this time I placed him under arrest for possession of cannabis.'

On cross-examination, Officer Korando testified that the dispatcher did not say who made the call that the defendant was carrying marijuana and beer in the trunk of his car, and that the officer had never determined who made the call. The defendant had not committed any crime in the officer's presence, there were no charges pending against him and the only reason for stopping him was the dispatcher's report as to the anonymous call. On cross-examination the officer repeated that he had asked defendant 'if we could look into his trunk.' The defendant was not under arrest at this time. The officer did not advise the defendant of his right not to consent to the warrantless search.

On appeal, the State makes two arguments: first, that a consent search is valid where the defendant does not communicate his withdrawal of consent until the officer is in the process of seizing the evidence; second, that the officer had probable cause to seize the paper bag even absent consent, because the anonymous tip was sufficiently corroborated by the officer's observation of the beer cooler and the brown paper bag in the trunk. The defendant responds first that the scope of consent was limited by both the officer's request and the defendant's words to Looking into the trunk, and that his consent was effectively withdrawn; second, that there were no corroborative facts, and that in any event the State has waived this contention for purposes of appeal by its concession at the preliminary hearing, where it relied solely on consent to legitimate the search, that no probable cause existed.

We must start from the settled proposition that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are Per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.' Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967). Consent to a search, which waives constitutional protection, is one of these recognized exceptions. See, e.g., People v. Harris, 34 Ill.2d 282, 215 N.E.2d 214 (1966), cert. denied 384 U.S. 993, 86 S.Ct. 1900, 16 L.Ed.2d 1009 (1966). Protection extends wherever the subject of a search possesses a reasonable expectation of privacy. Katz v. United States; People v. Nunn, 55 Ill.2d 344, 304 N.E.2d 81 (1973), cert. denied 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 108 (1974). The test of a valid consent is voluntariness under the totality of the circumstances, which include the subject's knowledge of his constitutional right to refuse consent. People v. Nunn; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In each case the determination of the factual question whether a valid consent was given is for the trial court, whose finding will be accepted by a court of review unless it is clearly unreasonable. People v. Cannon, 25 Ill.App.3d 737, 323 N.E.2d 846 (1st Dist. 1975), and cases cited therein.

We have carefully reviewed the record in this case, and the authorities cited by the parties, and cannot find the trial court's determination that the police officer's search exceeded the scope of the defendant's consent to be clearly unreasonable. The officer asked the defendant, with whom he was on a first-name basis and who was not under arrest, if he could Look into the trunk. The defendant might reasonably have expected that the officer was looking for some bulky item of stolen property that would be immediately apparent if present in the trunk of an automobile. By acquiescing in the request to look into his trunk, he did not, we think, consent to a probing exploration into a closed container within the trunk.

Two cases add support to our conclusion. In People v. Schmoll, 383 Ill. 280, 48 N.E.2d 933 (1943), the defendant, a physician, agreed that the state's attorney could go to his office to obtain his records in one case. Instead, All the doctor's records were taken, and subsequently he was convicted of performing an illegal abortion on the basis of some of the other records. In holding that the defendant's motion to suppress the evidence should have been allowed, Chief Justice Stone of the Illinois Supreme Court wrote:

'* * * An arresting officer has no more right to make a search beyond the limit prescribed in a consent to search, than he has to exceed the limit prescribed in a search warrant. The latter he has no right whatever to do. * * *

'As was said in People v. Castree, 311 Ill. 392, 143 N.E. 112, 113, 32 A.L.R. 357: 'A search without a warrant is an unreasonable search, and a search of a place not described is without a warrant and is unreasonable.' It is true that one who consents to a search of his property waives his constitutional right to complain that the search and seizure were unlawful. (Citations.) But since consent amounts to a waiver of such warrant, the consent must, in our opinion, be considered a waiver of such warrant only to the extent granted by the defendant in...