People v. Wetherbe, 83-245

• Court: United States Appellate Court of Illinois
• Writing for the Court: SEIDENFELD
• Citation: 78 Ill.Dec. 285,462 N.E.2d 1,122 Ill.App.3d 654
• Parties: , 78 Ill.Dec. 285 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. John WETHERBE, Defendant-Appellee.
• Docket Number: No. 83-245,83-245
• Decision Date: 26 March 1984

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462 N.E.2d 1 122 Ill.App.3d 654, 78 Ill.Dec. 285 PEOPLE of the State of Illinois, Plaintiff-Appellant,
v.
John WETHERBE, Defendant-Appellee. No. 83-245. Appellate Court of Illinois,
Second District. March 26, 1984.

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[78 Ill.Dec. 286] J. Michael Fitzsimmons, State's Atty., Barbara A. Preiner, Diana Fischer-Woods, Asst. States Attys., Wheaton, for plaintiff-appellant.

[122 Ill.App.3d 655] James F. Campion, Wheaton, for defendant-appellee.

SEIDENFELD, Presiding Justice:

Defendant, John Wetherbe, was charged with criminal damage to property, criminal trespass to land, and three counts of burglary. Prior to trial, defendant moved to suppress evidence obtained in a search of his car, contending that the search was the result of an illegal arrest. Following a

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[78 Ill.Dec. 287] hearing the trial court granted defendant's motion, and the State appeals.

The evidence presented at the hearing on defendant's motion indicated that, on January 28, 1982, at approximately 2 a.m., defendant was driving his car in the vicinity of Prince Crossing Road and North Avenue. Defendant was accompanied by Willard Large. Defendant turned into a construction site for the asserted purpose of visiting a friend who lived and worked there. Upon observing defendant's automobile, Deputy Dennis Gayles of the DuPage County sheriff's department, turned into the access road which led to the buildings and waited. When defendant's vehicle exited, Gayles activated his lights and defendant stopped. Gayles then noticed that defendant's license plates were expired. When Gayles requested identification from defendant, defendant was unable to produce his driver's license, but told Gayles his name. Gayles recognized defendant's name as a suspect in some thefts in the area and recognized Large as a suspected burglar and thief.

Defendant and Large exited the automobile and were patted down. Guzlas then looked inside the car and observed a case of new toothbrushes, several sets of used brake shoes, a truck reflector kit, and some small hand tools. Defendant and Large were arrested for criminal trespass to land. Consequently, Guzlas called a tow truck to take custody of defendant's vehicle. Before the tow truck arrived, Guzlas inventoried the contents of defendant's automobile. In the course of the inventory, Guzlas opened defendant's trunk and found radios and other electronic equipment which appeared to be stolen.

The trial court concluded that the inventory procedure was in fact an investigatory search and suppressed the items found in the search. After its motion for reconsideration was denied, the State appealed, certifying that the trial court's order substantially impaired the prosecution.

The State contends that the officers were justified in the search [122 Ill.App.3d 656] either on the basis of probable cause, as incident to a valid, arrest or for the purpose of an inventory.

Under the fourth amendment's prohibition against unreasonable searches and seizures, a warrant is required before an automobile may be searched, unless the search was made with consent, upon probable cause to believe that the vehicle was used in or contains evidence of a crime, as an incident to an arrest, or after lawful impoundment of the car. People v. Bayles (1980), 82 Ill.2d 128, 135, 44 Ill.Dec. 880, 411 N.E.2d 1346 cert. denied (1981), 453 U.S. 923, 101 S.Ct. 3160, 69 L.Ed.2d 1005.

1.

If the search had been made on the basis of probable cause, Guzlas would have been able to search the entire vehicle, including the trunk (United States v. Ross (1982), 456 U.S. 798, 102 S.Ct. 2157, 2170, 72 L.Ed.2d 572; People v. Freeland (1981), 103 Ill.App.3d 94, 58 Ill.Dec. 335, 430 N.E.2d 277), even after Guzlas had taken custody of the car (Michigan v. Thomas (1982), 458 U.S. 259, 102 S.Ct. 3079, 3081, 73 L.Ed.2d 750; Freeland, supra 103 Ill.App.3d 94, 58 Ill.Dec. 335, 430 N.E.2d 277), and regardless of the validity of defendant's arrest. (Chambers v. Maroney (1970), 399 U.S. 42, 47 n. 6, 90 S.Ct. 1975, 1979 n. 6, 26 L.Ed.2d 419, 426 n. 6.) However, as the State did not claim at trial that the search was based on probable cause, this ground has been waived as a basis for justifying the search. (People v. Fuentes (1980), 91 Ill.App.3d 71, 77, 46 Ill.Dec. 823, 414 N.E.2d 876; People v. Valdez (1980), 81 Ill.App.3d 25, 28, 36 Ill.Dec. 516, 400 N.E.2d 1096.) In any event, on the basis of this record, the circumstances would not have given Guzlas probable cause to believe that defendant's automobile contained evidence of a crime. (Compare, People v. Smith (1983), 95 Ill.2d 412, 69 Ill.Dec. 374, 447 N.E.2d 809; People v. Clark (1982), 92 Ill.2d 96, 65 Ill.Dec. 14, 440 N.E.2d 869.) While Guzlas was confronted with suspicious circumstances, there was no attempt in the trial court to develop a theory that Guzlas had any reasonable basis for concluding

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[78 Ill.Dec. 288] that the vehicle contained evidence of a criminal offense. The traffic violations which Guzlas observed, expired license plates and defendant's inability to produce his driver's license (Ill.Rev.Stat.1981, ch. 95 1/2, pars. 3-701, 6-112), would not create probable cause for a search of the car. People v. Kelly (1979), 76 Ill.App.3d 80, 85, 31 Ill.Dec. 537, 394 N.E.2d 739; see People v. Watts (1981), 93 Ill.App.3d 420, 425, 48 Ill.Dec. 845, 417 N.E.2d 247.

2.

When a person is subjected to a lawful custodial arrest, the police, acting without a warrant, may make a contemporaneous search of the person arrested and the immediate surrounding area. (New York v. Belton (1981), 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768.) Because[122 Ill.App.3d 657] it is the fact of a lawful arrest which authorizes the search, the arrest itself must be valid before a search may be justified as incident to arrest. (Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; People v. Mendoza (1978), 62 Ill.App.3d 609, 622, 19 Ill.Dec. 443, 378 N.E.2d 1318; see Michigan v. DeFillippo (1979), 443 U.S. 31, 99 S.Ct. 2627, 2631, 61 L.Ed.2d 343.) Defendant contends that his arrest for criminal trespass to land was unlawful, as there was no showing that defendant had been notified that entry was forbidden.

The offense of...