People v. Zeller

• Citation: 51 Ill.App.3d 935,367 N.E.2d 488,10 Ill.Dec. 100
• Decision Date: 31 August 1977
• Docket Number: No. 76-153,76-153
• Parties: , 10 Ill.Dec. 100 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David ZELLER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 488

367 N.E.2d 488

51 Ill.App.3d 935, 10 Ill.Dec. 100

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

No. 76-153.

Appellate Court of Illinois, Third District.

Aug. 31, 1977.

G. Joseph Weller, Robert J. Agostinelli, Deputy State Appellate Defender, Ottawa, for defendant-appellant.

Gail C. Coil, Asst. State's Atty., James R. Fritze, Watseka, State's Atty., for plaintiff-appellee.

STENGEL, Presiding Justice.

Following a bench trial in the Circuit Court of Iroquois County, defendant David Zeller was convicted of possession of a controlled substance and sentenced to one to three years in the penitentiary. The sole issue on appeal is whether the trial court erroneously refused to suppress evidence obtained as a result of a warrantless search of defendant's person.

At a hearing on defendant's motion to suppress, Illinois State Trooper Donald Thompson testified that at 7:15 p. m. on September 14, 1975, he stopped an automobile because of a defective headlight. Two males occupied the front seat, and defendant was the sole back seat passenger. After Thompson, the driver, and the front seat passenger had inspected the faulty headlight and the driver had been ticketed, Thompson noticed a can of beer on the front seat and a puddle of liquid on the floor in the front part of the car. Suspecting the three men of transporting open liquor, Thompson ordered defendant out of the car and told the suspects to wait near the car while he searched it. Thompson found one open and one sealed can of beer in the front portion of the car, but found no liquor in the back seat or trunk. A second open can of beer was recovered just outside of the car. Thompson then announced that all three men were under arrest and would have to accompany him to the station.

Next, Thompson patted-down the outer clothing of each arrestee for weapons because, as he testified, the suspects were milling about the car as he searched it, and he did not feel he could safely turn his back on them. He felt a hard metalic object in the pocket of defendant's Levi jacket, and removing it discovered a tight wad of tinfoil containing three packets of a substance later identified as phencyclidine. His search of the suspects produced no weapons. Convinced of his safety, Thompson loaded the two passengers into the back of his squad car and followed the driver of the vehicle to the station.

At the station house defendant was charged with possession of a controlled substance, and the other two men were charged with transporting open liquor. Although defendant testified at the suppression hearing that Thompson did not arrest him for transporting open liquor, the trial judge resolved this factual issue in favor of the prosecution and ruled that the drugs had been lawfully seized.

Defendant concedes that Thompson's initial action in stopping their vehicle was valid. However, he challenges Thompson's justification for searching the car. Despite some strong doubts over defendant's standing to raise this issue (see People v. Rakas (3d Dist. 1977), 46 Ill.App.3d 569, 4 Ill.Dec. 877, 360 N.E.2d 1252), we think the State has waived any objection it may have had by not objecting at the suppression hearing. (See People v. Edwards (4th Dist. 1974), 21 Ill.App.3d 354, 315 N.E.2d 91.) Consequently we will assume for purposes of this appeal that defendant has standing to challenge Thompson's search of the vehicle.

The general rule was stated in People v. Robinson (1976), 62 Ill.2d 273, 276, 342 N.E.2d 356, 358, as follows:

"There is probable cause when the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. (People v. McCrimmon, 37 Ill.2d 40, 43, 224 N.E.2d 822.) This court observed in People v. Jones, 31 Ill.2d 42, 47, 198 N.E.2d 821, 823 that ' * * * reasonable cause means something less than evidence which would result in a conviction, and it is also established that reasonable cause may be founded upon evidence that would not be admissible at trial.' "

According to the opinion in People v. Tassone (1968), 41 Ill.2d 7, 10, 241 N.E.2d 419, 421, cert. denied, 394 U.S. 965, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969), "Whether a search and seizure is reasonable depends upon whether the officer's action was justified at its inception and whether it was reasonably related in scope to the circumstances which justified initial interference with a defendant's personal security."

The reasonableness of the officer's actions must be measured objectively (People v. Owens (1969), 41 Ill.2d 465, 244 N.E.2d 188), and we think that Thompson's actions in this case clearly pass muster under Tassone. After lawfully stopping defendant and his companions for a traffic violation, Thompson noticed a can of beer and a puddle of liquid in plain view on the floor of the left front carpet of the car. He suspected that open liquor was being transported. Although Thompson did not detect the odor of alcohol, we believe his decision to search the vehicle based solely on the presence of a can of beer and a puddle was reasonable. Furthermore, the mere fact that the beer and puddle were viewed in the front portion of the car did not render Thompson's search of the entire car, including the trunk, unreasonable.

While the determination of reasonableness depends upon the particular facts involved (People v. Jones (1967), 38 Ill.2d 427, 231 N.E.2d 580), comparison of Thompson's actions with other cases involving warrantless automobile searches clearly indicate that he acted with probable cause. (E. g., People v. Glass (1st Dist. 1977), Ill.App., 7 Ill.Dec. 244, 364 N.E.2d 405; People v. Henry (2d Dist. 1977), 48 Ill.App.3d 606, 6 Ill.Dec. 583, 363 N.E.2d 112; People v. Corrigan (4th Dist. 1977), 45 Ill.App.3d 502, 4 Ill.Dec. 155, 359 N.E.2d 1107; People v. Wiggins (1st Dist. 1976), 45 Ill.App.3d 85, 3 Ill.Dec. 616, 358 N.E.2d 1301; People v. Scherer (4th Dist. 1974), 23 Ill.App.3d 473, 318 N.E.2d 760; People v. Symmonds (4th Dist. 1974), 18 Ill.App.3d 587, 310 N.E.2d 208.) Furthermore, People v. Lichtenheld (2d Dist. 1976), 44 Ill.App.3d 647, 3 Ill.Dec. 296, 358 N.E.2d 694, cited by the defendant, involved a situation where the officer searched the defendant's auto without any articulable reason for doing so, and is, of course, distinguishable. On a motion to suppress illegally-seized evidence the defendant carries the burden of establishing that the search was illegal (People v. Berg (1977), 67 Ill.2d 65, 7 Ill.Dec. 589, 364 N.E.2d 880.) Based on the record, we conclude that the trial judge...