People v. Symmonds

• Decision Date: 18 April 1974
• Docket Number: No. 12303,12303
• Citation: 18 Ill.App.3d 587,310 N.E.2d 208
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellant, v. David J. SYMMONDS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 208

310 N.E.2d 208

18 Ill.App.3d 587

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. David J. SYMMONDS, Defendant-Appellee.

No. 12303.

Appellate Court of Illinois, Fourth District.

April 18, 1974.

James R. Burgess, Jr., State's Atty., Champaign County, Urbana, for plaintiff-appellant; Donald R. Parkinson, Asst. State's Atty., and James L. Proffit, Law Student, of counsel.

No appearance for defendant-appellee.

SIMKINS, Justice.

This is an appeal by the State pursuant to Supreme Court Rule 604(a)(1) ( Ill.Rev.Stat.1971, ch. 110A, 604(a)(1)) from an order granting the defendant's motion to suppress evidence. On January 10, 1973, at 8:15 p.m., Illinois state trooper Nargelenas stopped the defendant's car after observing it had only one headlight functioning. Following routine procedure for hours of darkness, as the trooper approached defendant's vehicle he used a flashlight to glance inside to ascertain the number of occupants and the possible presence of any weapon. In so doing he observed some beer cans on the floor behind the front seat and a plastic lid with a grass-looking substance on the back seat. When the defendant, who was alone in the car, was unable to produce his driver's license, he was requested to accompany the trooper back to the squad car to determine by radio whether the defendant had a valid driver's license. The trooper asked the defendant's age and the defendant refused to tell him. It appeared to the officer that the defendant was under 21 years of age. The trooper then returned to the defendant's car where he ascertained that the beer cans were empty. While looking in the rear of the vehicle, the trooper again noticed the grass-looking substance on the back seat, and suspecting that it was marijuana, he seized it.

After a complaint was filed charging defendant with possession of more than 2.5 grams, but less than 10 grams of cannabis in violation of the Cannabis Control Act (Ill.Rev.Stat.1971, ch. 56 1/2, 704), he was arraigned and plead not guilty. The defendant then filed a motion to suppress alleging that the search was illegal, stating that he had been stopped for a minor traffic violation and offered no resistance to the arrest for failure to have one headlight working and for failure to have his driver's license on his person, after which '* * * the officer thereupon conducted a search which was illegal and recovered from the petitioner's automobile a small amount of Cannabis which was sitting on a plastic lid on the rear seat of the automobile along with miscellaneous items'.

On March 2, 1973, a hearing was had on the motion to suppress, following which the court granted the motion along with a statement of the court's findings. The court found that the trooper had observed the plastic lid with the grass-looking substance on the back seat as well as the beer cans on the floor when initially approaching the defendant's car, and that after it was learned the defendant did not have a valid driver's license on his person and the defendant refused to tell his age, the trooper had probable cause to return to the defendant's car and ascertain whether or not the beer cans contained any beer. However, the court went on to find 'the officer, at the same time, suspected that the grass on the plastic lid might be marijuana. There being no evidence before the court that the officer had any training or knowledge of what marijuana looks like, there is finding by the court that the officer did not have probable cause to seize the grass in the back seat.' The court also found '* * * that the evidence was not produced to the court to ascertain the time it was determined that the substances (sic) was marijuana or at what time the officer had probable cause to believe that it was.'

[1,2] On this appeal the State presents three issues: Whether the conduct of the trooper constituted a search; if so, whether it was a reasonable search; and whether the trial court improperly excluded the testimony of the trooper. At the outset it should be noted that the court specifically found the trooper had probable cause to return to the defendant's car and investigate the condition of the beer cans. The contention of the defendant in his motion that the entire search was invalid because he had only been stopped for a minor traffic violation is of no merit. The United States Supreme Court has recently spoken on the matter of warrantless searches incident to arrest for traffic offenses and rejected the contention that the relative seriousness of the offense for which the arrest is made limits the extent of the permissible search, holding that a law enforcement of ficer authority to make a full search incident to a custodial arrest requires no justification beyond the fact of the arrest itself. (United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427; Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.E.2d 456.) Those Supreme Court cases are similar to the instant case in that they involve an arrest for relatively minor traffic violations and a fortuitous discovery of narcotics in the subsequent search but are distinguishable in that the search was of the person of the defendant.

[3-6] We agree with the trial court that the state trooper had probable cause to return to the car and make a search. The Illinois supreme court has said that an accused is afforded constitutional protection against unreasonable searches and seizures if the state is compelled to support a search incident to an arrest without a warrant by credible evidence showing the basis for reasonable cause by the arresting officer. (People v. McCray, 33 Ill.2d 66, 210 N.E.2d 161.) Here defendant failed to produce a driver's license at the request of the arresting trooper, and this alone has been held a circumstance sufficient to warrant a policeman's reasonable belief that he may be dealing with a criminal rather than a mere traffic violator. (People v. Gilyard, 124 Ill.App.2d 95, 260 N.E.2d 364.) In that case, the court upheld the policeman's search of the driver and both passengers of the automobile. In addition, in the instant case, the trooper had observed beer cans in the back of the car and defendant appeared to be under the age of 21 (in fact, defendant was 19), so that the mere possession of the beer might be an offense even if it were not open. Regardless of how well the trooper had seen the plastic lid containing a grass-like substance from outside the car, once legitimately inside the car for the purpose of inspecting the beer cans, he was not obliged to ignore the former. The Illinois supreme court has said:

'We have held that a search implies a prying into hidden places for that which is not open to view; and that a search implies an invasion and quest with some sort of force, either actual or constructive * * *. Where, as here, the articles are in plain and open view and are observed by police officers under suspicious circumstances, it is not a 'search' nor an unreasonable seizure for the officers to make a reasonable investigation thereof.' (People v. McCracken, 30 Ill.2d 425, 429, 197 N.E.2d 35, 37.)

A search incident to a lawful arrest is reasonable even though it is not restricted to evidence directly related to the offense for which the arrest is made. (People v. Pruitt, 79 Ill.App.2d 209, 223 N.E.2d 537.) The test is whether the search was reasonable. (People v. Wright, 42 Ill.2d 457, 248 N.E.2d 78.) A seizure of property, the possession of which is unlawful as well as evidence related to the crime, is permissible. People v. Hester, 39 Ill.2d 489, 237 N.E.2d 466.

[7,8] Probable cause is required for any warrantless search. (Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564.) However, probable cause in that sense refers to a belief which is reasonable that a search of the particular place or thing will disclose evidence, fruits of the crime, or is necessary for the protection of the police officer so as to justify the search. Here there was a valid arrest and the court found probable cause to return to the car to investigate the beer cans. The real issue here is the precise scope of the required 'probable cause'. The trial court in its order did not find the search itself invalid as lacking probable cause, nor did it make any finding that the marijuana was not contraband found in plain view during the valid search. Rather, the finding that the officer lacked probable cause is directed at the officer's qualification or competency to formulate the probability that the grass-like substance was marijuana.

Again referring to the United States Supreme Court cases involving narcotics discovered in a search incident to arrest for minor traffic violations: in Robinson the defendant was stopped while driving without a license, and during the subsequent search the officer felt an object which he removed from a pocket and saw that it was a crumpled cigarette package. The officer testified that he did not know what was in the package, but it did not fell like cigarettes so he opened it and found 14 gelatin capsules containing a white powder which he thought to be, and which later analysis proved to be, heroin. The heroin was introduced at the trial which resulted in the defendant's conviction. Therefore, in Robinson the policeman only saw the crumpled up cigarette package--nothing resembling narcotics--and then opened the package and saw capsules which contained white powder which he thought to be heroin. In discussing the validity of the search and seizure, the Supreme Court did not question why the policeman thought the white powder was heroin. The Supreme Court said:

'Having in the course of a lawful search come upon the crumpled package of cigarettes, he was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as 'fruits, instrumentalities, or contraband' probative of criminal conduct.'

Gustafson v. Florida is...